Hard Cases Make Bad Law? a Theoretical Investigation

Abstract: I use formal models to probe the aphorism that ''hard cases make bad law.'' The analysis recovers the aphorism's core intuition but also enriches and extends it. I show that, among cases posing an extra-doctrinal ''special hardship,'' difficult cases and important cases are more likely to make bad law. But, conditional on making bad law, more-difficult cases make less-bad law. I also model impact litigators who can influence the selection of cases that make law. The litigator improves lawmaking when her influence over case selection is modest--even when her preferred rule is far from the ideal rule--but her effect on lawmaking quality is more nuanced when she has greater selection power. Finally I model a judicial hierarchy with asymmetric information and factfinding discretion. Here, even cases that do not pose a special hardship may make bad law; the effect of difficulty on lawmaking quality is nonmonotonic; and bad laws are Pareto-dominated. The insights enrich our understanding of judicial lawmaking, as illustrated by a variety of applications.