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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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THE STRATEGIC ANALYSIS OF JUDICIAL DECISIONS

Published in the Annual Review of Law and Social Science (2010) 6: 22.1-22.18

Lee Epstein
Tonja Jacobi

Abstract

Since the 1990s, there has been an explosion of empirical and theoretical work dedicated to advancing strategic accounts of law and legal institutions. Reviewing this extensive literature could be accomplished in multiple ways. We chose an approach that underscores a major contribution of strategic accounts: that they have forced scholars to think about the interdependent—i.e., strategic—nature of judicial decisions. On strategic accounts, in other words, judges do not make decisions in a vacuum, but rather take into account the preferences and likely actions of other relevant actors, including their colleagues, their judicial superiors, and members of the other branches of government. After defining strategic analysis and how it differs from other approaches to judicial decisions, we examine the literature on the forms of strategic behavior in which (preference-maximizing) judges engage when interacting with these three sets of actors.

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