Divided by the Facts: Asymmetric Preferences over Legal Rules and Bargaining on Collegial Courts
Abstract: Judicial decisions, particularly those by high courts, have two separate effects: They resolve a particular dispute and they announce a legal rule that justifies this resolution. In this paper, we consider the micro-foundations of judicial preferences over legal rules. We argue that while judges may care about legal rules for a number of reasons, one reason is that legal rules shape the resolution of future cases. As a result, a judge prefers those rules that she expects will make more cases come out ``right'' (from her perspective) to those that she expects will make fewer cases come out ``right.'' We demonstrate that if this is true, judicial preferences over rules will typically be asymmetric: A judge will be sensitive to deviations from her preferred rule if such deviations affect many future cases, while she may be willing to tolerate significant departures from her preferred rule if this departure does not affect many cases. We show that the direction and degree of this asymmetry are endogenous to the location of the judges' ideal points. Finally, we demonstrate that such asymmetric preferences can have important consequences for the legal rules that emerge from collegial courts, as well as for the nature of the coalitions that support a decision.
