Academic journal article Justice System Journal

Strategic-Instrument Theory and the Use of Non-Authoritative Sources by Federal Judges: Explaining References to Law Review Articles*

Academic journal article Justice System Journal

Strategic-Instrument Theory and the Use of Non-Authoritative Sources by Federal Judges: Explaining References to Law Review Articles*

Article excerpt

When do judges include references to non-authoritative sources in their opinions? Do strategic motivations account for the use of these sources? This study evaluates strategic explanations for citations to non-authoritative sources by examining the citation of law review articles by U.S. Courts of Appeals judges. It is hypothesized that judges are more likely to cite law review articles when they anticipate opposition from other actors who have power to limit or overturn their decisions. The study also controls for other potential explanations for citations to law review articles. The findings provide empirical support for the strategic model of judicial behavior, demonstrating that judges tend to cite more broadly in the face of conflict.

An emerging literature has found that federal judges use instrument-choice stratejtxgies to improve the impact of their decisions (Tiller and Spiller, 1999; Smith and Tiller, 2002; Corley, Howard, and Nixon, 2005; Hume, 2006; King, 2007). Defined broadly, instrument- choice strategies are efforts by judges to use the language of their opinions to win support for their judgments. Unlike policy-choice strategies, which occur when judges change the substance of their policies to win the support of other actors (e.g., Maltzman, Spriggs, and Wahlbeck, 2000), instrument- choice strategies do not involve substantive modifications to a court's policy output. Instead, judges attempt to make their opinions more persuasive to other actors using opinion content such as the legal grounding (Smith and Tiller, 2002; King, 2007) and supporting evidence (Corley, Howard, and Nixon, 2005; Hume, 2006).

The literature on instrument- choice theory to this point has focused primarily on identifying the contexts in which judges use strategic instruments. We know, for example, that U.S. Supreme Court justices use strategic instruments when the legitimacy of their decisions is low (Corley, Howard, and Nixon, 2005; Hume, 2006) and when Congress appears likely to overturn their statutory decisions (King, 2007). We also know that judges on the U.S. Courts of Appeals use strategic instruments to avoid reversal by the Supreme Court (Smith and Tiller, 2002) and to hold together majority coalitions (Hume, 2009). These studies have helped to identify the different audiences that judges are likely to be thinking about when they are writing their opinions.

However, the literature lacks clarity about the forms of opinion content that qualify as strategic instruments. The primary theoretical contribution of this article is to suggest that a well- specified instrument-choice theory should include references to non-authoritative sources, such as law review articles. These references are likely to qualify as strategic instruments because their main purpose is to contribute to the persuasiveness of judicial opinions as a whole. When judges anticipate reversal by a higher court, or when they expect opposition to their policies from other actors who have power to limit the effects of their policies, judges supplement their opinions with citations to non-authoritative sources to create an impression that their decisions are wellsupported. By casting a wider net in the face of conflict, strategic judges demonstrate that their policies are well grounded in a variety of sources and are, therefore, legitimate.

In this study, I examine citations to one type of non-authoritative source, law review articles, by judges on the U.S. Courts of Appeals. While law review articles are certainly familiar in judicial opinions, they are not standard features and are unlikely to be included in opinions unless judges have incentives to include them. A study by the Cardólo Law Review in 2007 found that references to the Harvard Law Review by judges on the U.S. Courts of Appeals are uncommon and have actually declined in recent years from 4,410 citations in the 1970s to 1,956 in the 1990s (Alden et al., 2007; Liptak, 2007). …

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