Appellate Law-making in a Judicial Hierachy
Abstract: We examine a dynamic model of appellate court lawmaking that incorporates review of trial court dispositions. We consider two types of trial courts: realist and legalist. Realist trial courts want to get their preferred disposition subject to the threat of reversal. Legalist trial courts, by contrast, exert effort analogizing their case to one of two existing appellate court precedents (a "liable" precedent and a "not liable" precedent). Distant analogies are more expensive for the legalist trial court to make than close analogies. Each period, the appellate court audits trial court dispositions. A successful audit provides an opportunity to create precedent. Precedent changes future trial court dispositions by providing new cases from which the legalist trial court can draw analogies. This, in turn, alters the appellate court's scrutiny of these dispositions -- its audit strategy -- going forward. We use the model to provide an account for affirmances with opinions, the practice of dicta, and to explore how appellate scrutiny will differ depending on the appellate court's hunch of the likely merits of the lower court disposition. We also demonstrate how settlement of cases before appeal can improve the performance of appellate review. Throughout, we relate the findings to existing evidence and derive testable predictions
