What's Law Got to Do with It? What Judges Do, Why They Do It, and What's at Stake

By Charles Gardner Geyh | Go to book overview

7
Stare Decisis as Reciprocity Norm

Stefanie A. Lindquist

LIKE ACTORS in other governmental institutions, judges within appellate courts are subject to their own unique set of governing norms and practices. Many of these norms are formal in nature, involving specific statutory, constitutional, or procedural rules that regulate or proscribe jurisdiction, appellate procedure, and judicial tenure and selection. In addition to these formal norms, however, courts also develop informal norms that similarly constrain judicial actors to the extent that they produce shared expectations about appropriate behavior. Examples of such informal norms at the U.S. Supreme Court include secrecy during deliberations, the Rule of Four, and opinion assignment procedures (O’Brien 1999; Epstein and Knight 1998). These informal norms do not require governmental or other external enforcement to ensure cooperation because other mechanisms often exist that allow participants to monitor and sanction defectors and thus to maintain the norm at some level. In that sense, they constitute an equilibrium outcome among participants (Knight 1992).

Among the most important informal norms within collegial courts are those that involve consensual decision-making. Such consensual norms govern judges’ propensity to write dissenting or concurring opinions that publicize their disagreements (see Caldeira and Zorn 1998; Narayan and Smyth 2005), as well as their willingness to adhere to existing precedent (Rasmusen 1994; Spaeth and Segal 1999; Hansford and Spriggs 2006). These norms may emerge because of a shared commitment to the rule of law or to institutional legitimacy. They may also exist, however, because policy-oriented judges, motivated to en-

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