Beyond principal-agent theories: Law and the judicial hierarchy

Northwestern University Law Review

Volumn 105, Issue 2, 2011, Pages 535-579

  Kim, Pauline T ^a  

^a WASHINGTON UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 81255128069     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (365)

1. Sara C. Benesh & Malia Reddick, Overruled: An Event History Analysis of Lower Court Reaction to Supreme Court Alteration of Precedent, 64 J. POL. 534, 536 (2002);
2. Charles M.Cameron, Jeffrey A. Segal & Donald Songer, Strategic Auditing in a Political Hierarchy:An Informational Model of the Supreme Court's Certiorari Decisions, 94 AM. POL. SCI. REV. 101, 103 (2000)
3. Tom S. Clark, A Principal-Agent Theory of En Banc Review, 25 J.L. ECON. & ORG. 55, 76 (2008)
4. Tracey E. George & Michael E. Solimine, Supreme Court Monitoring of the United States Courts of Appeals En Banc, 9 SUP. CT. ECON. REV. 171, 175 (2001)
5. Tracey E. George & Albert H. Yoon, The Federal Court System: A Principal-Agent Perspective, 47 ST. LOUIS U. L.J. 819, 820-22 (2003)
6. Susan B. Haire, Stefanie A. Lindquist & Donald R. Songer, Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective, 37 LAW & SOC'Y REV. 143, 162-64 (2003)
7. Tonja Jacobi & Emerson H. Tiller, Legal Doctrine and Political Control, 23 J.L. ECON. & ORG. 326, 329 (2007)
8. Stefanie A. Lindquist, Susan B. Haire & Donald R. Songer, Supreme Court Auditing of the US Courts of Appeals: An Organizational Perspective, 17 J. PUB. ADMIN. RES. & THEORY 607, 610 (2007)
9. Kirk A. Randazzo, Strategic Anticipation and the Hierarchy of Justice in U.S. District Courts, 36 AM. POL. RES. 669, 671-75 (2008)
10. Donald R. Songer, Jeffrey A. Segal & Charles M. Cameron, The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM. J. POL. SCI. 673 (1994)
11. Matt Spitzer & Eric Talley. J. LEGAL STUD. 649, 670 (2000).
12. George & Yoon, supra note 1, at 822 (explaining that the Supreme Court delegates a great deal of its work to lower courts, which must effectuate the Court's doctrines)
13. Randazzo, supra note 1, at 671 (discussing how the principal, lacking resources, delegates tasks to the agent, who is expected to represent the principal's interests)
14. Songer, Segal & Cameron, supra note 1, at 675 (describing the Supreme Court as the principal and the courts of appeals as agents who should follow the Court's policy dictates)
15. Benesh & Reddick, supra note 1, at 536 (positing that lower courts will not follow Supreme Court policy when they disagree with it)
16. Cameron, Segal & Songer, supra note 1, at 104 (assuming that upper and lower courts have different preferences regarding case dispositions)
17. George & Yoon, supra note 1, at 822 (noting that when the preferences of Supreme Court and lower court judges diverge, there is "an incentive to make a non-complying ruling")
18. Lindquist, Haire &Songer, supra note 1, at 610 (describing how goal conflicts that arise when upper and lower courts have divergent preferences reduce the ability of the Supreme Court to guide the decisions of the lower courts)
19. McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1633-36 (1995) (pointing out that the Supreme Court and lower courts often differ significantly in their preferences regarding judicial doctrine, creating a risk of noncompliance with Supreme Court precedent)
20. Randazzo, supra note 1, at 671 (noting that the agent's preferences may differ from the principal's, creating tension in the relationship)
21. Songer, Segal & Cameron, supra note 1, at 675 (observing that "utility maximizing appeals court judges also have their own policy preferences, which they may seek to follow to the extent possible").
22. George & Solimine, supra note 1, at 175 (theorizing that Justices seek to advance their policy preferences through the certiorari process)
23. Haire, Lindquist & Songer, supra note 1, at 163 (suggesting that "federal judges at all levels are guided by their policy preferences")
24. McNollgast, supra note 3, at 1636 (assuming that judges "act rationally to bring policy as close as possible to their own preferred outcome")
25. Spitzer & Talley, supra note 1, at 655 (modeling judges as primarily interested in reaching legal outcomes which are as consistent as possible with their policy preferences).
26. Ethan Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 AM. POL. SCI. REV. 755, 757 (2002) (suggesting that policy-oriented appellate courts develop lines of cases in order to communicate better with lower courts)
27. Haire, Lindquist & Songer, supra note 1, at 143-44 (asserting that appellate courts' power to affirm or reverse is a means of signaling their preferences to the lower courts)
28. McNollgast, supra note 3, at 1639 (describing a "doctrinal interval" that indicates a range of rules "that are acceptable to the Supreme Court when reviewing decisions by a lower court").
29. George & Yoon, supra note 1, at 823-24
30. Jacobi & Tiller, supra note 1, at 326.
31. Richard A. Posner, How judges think 12, 126 (2008)
32. Christine L. Nemacheck, Strategic Selection: Presidential Nomination of Supreme Court Justices from herbert hoover through
33. George w. Bush 33-34 (2007) (likening the relationship between a president and his Supreme Court nominee to that of a principal and an agent)
34. Posner, supra note 7, at 126 (asking whether a federal judge's principal is a higher court, Congress, the appointing President, the current President, the American people, the framers of the Constitution, the Constitution itself and statutes and precedents, or "the law")
35. James C. Brent, An Agent and Two Principals: U.S. Court of Appeals Responses to Employment Division, Department Of Human Resources v. Smith and the Religious Freedom Restoration Act, 27 AM. POL. Q. 236, 255 (1999) (finding that, in passing the Religious Freedom Restoration Act, "Congress [was] as successful as the Supreme Court in enlisting the Court of Appeals as its agent")
36. Stephen J. Choi & G. Mitu Gulati, Which Judges Write Their Opinions (and Should We Care)?, 32 FLA. ST. U. L. REV. 1077, 1082 (2005) (describing judges as agents of the public)
37. Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 435 (2007) (observing that lower court judges could be conceptualized as agents of the President who appointed them or of the Congress that confirmed them and enacted the laws that they interpret)
38. Spitzer & Talley, supra note 1, at 650 (noting that the Judicial Branch could be viewed as delegated decisionmaker for the Legislative and Executive Branches). A number of empirical studies have demonstrated that federal appellate court judges' voting patterns appear to be influenced not only by the judges' own policy preferences but also by the other judges with whom they sit when deciding a case
39. Cass R. Sunstein, David Schkade, Lisa M. Ellman & Andres Sawicki, Are Judges Political? An Empirical Analysis Of The Federal Judiciary 11-12 (2006) (finding that "variations in panel composition lead to dramatically different outcomes" in a number of issue areas)
40. Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 COLUM. L. REV. 1, 26 (2008) (finding evidence of panel effects in cases under section 2 of the Voting Rights Act)
41. Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2156 (1998) (concluding that the presence of ideological minorities on judicial panels influences the votes of majority judges)
42. Pauline T. Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. PA. L. REV. 1319, 1374 (2009) (empirically confirming that panel composition affects decisionmaking on circuit courts of appeals and testing competing explanations for panel effects)
43. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1771-72 (1997) (concluding that the ideology of the other panel members influences a judge's vote in environmental cases)
44. Joshua B. Fischman, Interpreting Circuit Court Voting Patterns: A 'Social Interactions' Framework 20 (Va. Pub. Law & Legal Theory, Research Paper No. 2010-27, 2011), available at http://papers.ssrn.com/abstract=1636002 (finding evidence of panel effects in multiple datasets of circuit judge votes in a variety of issue areas). In addition, a rich academic literature has considered how interactions among judges on multimember courts, such as the United States Supreme Court or the federal courts of appeals, affect their decisionmaking Forrest
45. Maltzman, James F. Spriggs II & Paul J. Wahlbeck, Crafting Law On The Supreme Court: The Collegial Game (2000)
46. Evan H. Caminker, Sincere and Strategic Voting Norms on Multimember Courts, 97 MICH. L. REV. 2297 (1999)
47. Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639 (2003)
48. Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CALIF. L. REV. 1 (1993)
49. Jeffrey R. Lax, Certiorari and Compliance in the Judicial Hierarchy: Discretion, Reputation and the Rule of Four, 15 J. Theoretical Pol. 61 (2003)
50. Jeffrey R. Lax & Charles M. Cameron, Bargaining and Opinion Assignment on the US Supreme Court, 23 J.L. ECON. & ORG. 276 (2007). supra notes 1-6 and accompanying text
51. Songer, Segal & Cameron, supra note 1, at 675.
52. George & Yoon, supra note 1, at 819.
53. Haire, Lindquist & Songer, supra note 1, at 146.
54. Randazzo, supra note 1, at 672.
55. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court And The Attitudinal Model 65 (1993) (explaining that the attitudinal model "holds that the Supreme Court decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the justices")
56. Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 265 (1997) ("[The attitudinal model] suggests that judicial decisionmaking is not based upon reasoned judgment from precedent, but rather upon each judge's political ideology and the identity of the parties.")
57. Songer, Segal & Cameron, supra note 1.
58. Cameron, Segal & Songer, supra note 1.
59. Jacobi & Tiller, supra note 1.
60. Sara C. Benesh & Wendy L. Martinek, State Supreme Court Decision Making in Confession Cases, 23 JUST. SYS. J. 109, 125 (2002)
61. Keith Rollin Eakins & Karen Swenson, An Analysis of the States' Responses to Republican Party of Minnesota v. White, 28 JUST. SYS. J. 371, 373-74 (2007)
62. Michael E. Solimine, The Future of Parity, 46 WM. & MARY L. REV. 1457, 1476 (2005)
63. But cf. John C. Kilwein & Richard A. Brisbin, Jr., Policy Convergence in a Federal Judicial System: The Application of Intensified Scrutiny Doctrines by State Supreme Courts, 41 AM. J. POL. SCI. 122, 124-25 (1997) (questioning the application of a principal-agent model to relationships between the United States Supreme Court and the state supreme courts).
64. Clark, supra note 1, at 76
65. Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 WASH. L. REV. 213, 245 (1999)
66. Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990, 59 GEO. WASH. L. REV. 1008, 1011-13 (1991)
67. Michael E. Solimine, Ideology and En Banc Review, 67 N.C. L. REV. 29, 49 (1988).
68. Chris Guthrie & Tracey E. George, The Futility of Appeal: Disciplinary Insights into the "Affirmance Effect" on the United States Courts of Appeals, 32 FLA. ST. U. L. REV. 357, 373 (2005)
69. Haire, Lindquist & Songer, supra note 1, at 144-50
70. Randazzo, supra note 1, at 673-75.
71. Mark McGaw, Agency: English Common Law, in 1 OXFORD INTERNATIONAL ENCYCLOPEDIA OF LEGAL HISTORY 108, 108-10 (Stanley N. Katz ed., 2009).
72. RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006).
73. id. cmt. d ("Under the common-law definition, agency is a consensual relationship. The definition requires that an agent-to-be and a principal-to-be consent to their association with each other.")
74. Randy E. Barnett, Squaring Undisclosed Agency Law with Contract Theory, 75 CALIF. L. REV. 1969, 1981 (1987) (describing a consent theory of agency)
75. Gerard McMeel, Philosophical Foundations of the Law of Agency, 116 L.Q. REV. 387, 388-92 (2000) (providing a history and description of the consensual theory of agency doctrine).
76. RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. e.
77. Gerard McMeel, Philosophical Foundations of the Law of Agency, 116 L.Q. REV. 387, 388-92 (2000) (providing a history and description of the consensual theory of agency doctrine) cmt. c.
78. Gerard McMeel, Philosophical Foundations of the Law of Agency, 116 L.Q. REV. 387, 388-92 (2000) (providing a history and description of the consensual theory of agency doctrine).
79. Id. cmt. f(1).
80. RESTATEMENT (THIRD) OF AGENCY intro. ("In general, agency does not encompass situations in which an 'agent' is not subject to a right of control in the person who benefits from or whose interests are affected by the agent's acts, who lacks the power to terminate the 'agent's' representation, or who has not consented to the representation.").
81. id. §§ 6.01-6.11, 7.03-7.08
82. Eric Rasmusen, Agency Law and Contract Formation, 6 AM. L. & ECON. REV. 369, 370 (2004) (explaining that traditional agency law is often concerned with what happens when the agent's effort is mischanneled, causing harm to a third party).
83. RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. e.
84. Eric Rasmusen, Agency Law and Contract Formation, 6 AM. L. & ECON. REV. 369, 370 (2004) (explaining that traditional agency law is often concerned with what happens when the agent's effort is mischanneled, causing harm to a third party)
85. Eric Rasmusen, Agency Law and Contract Formation, 6 AM. L. & ECON. REV. 369, 370 (2004) (explaining that traditional agency law is often concerned with what happens when the agent's effort is mischanneled, causing harm to a third party).
86. Compagnie de Reassurance, d'Ile de France v. New England Reinsurance Corp., 944 F. Supp. 986, 996 (D. Mass. 1996) (noting that "fiduciary dut[ies] arise out of a relationship of vulnerability")
87. Gregory S. Alexander, A Cognitive Theory of Fiduciary Relationships, 85 CORNELL L. REV. 767, 776-77 (2000) (arguing that the rationale for the duty of loyalty is a gross imbalance of power between the parties)
88. Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 1988 DUKE L.J. 879, 902 (suggesting that fiduciary obligations are often justified because of one party's vulnerability to the fiduciary's abuse of power).
89. RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. e ("In the absence of the fiduciary bench-mark, the principal would have a greater need to define authority and give interim instructions in more elaborate and specific form to anticipate and eliminate contingencies that an agent might otherwise exploit in a self-interested fashion.")
90. id. § 8.01 cmt. b ("The fiduciary principle supplements manifestations that a principal makes to an agent, making it unnecessary for the principal to graft explicit qualifications and prohibitions onto the principal's statements of authorization to the agent.").
91. Frank H. Easterbrook & Daniel R. Fischel, Contract and Fiduciary Duty, 36 J.L. & ECON. 425, 426 (1993).
92. Id. at 427
93. Frank H. Easterbrook & Daniel R. Fischel, Economic Structure Of Corporate Law 92 (1991) ("Socially optimal fiduciary rules approximate the bargain that investors and managers would have reached if they could have bargained (and enforced their agreements) at no cost.").
94. Milton Harris & Artur Raviv, Some Results on Incentive Contracts with Applications to Education and Employment, Health Insurance, and Law Enforcement, 68 AM. ECON. REV. 20, 20 (1978) (listing the employer-employee relationship as one that fits the "agency paradigm")
95. Terry M. Moe, The New Economics of Organization, 28 AM. J. POL. SCI. 739, 756 (1984) (same)
96. David E.M. Sappington, Incentives in Principal-Agent Relationships J. ECON. PERSP, Spring 1991, at 45, 46 (same).
97. Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FIN. ECON. 305, 309 (1976)
98. Steven Shavell, Risk Sharing and Incentives in the Principal and Agent Relationship, 10 BELL J. ECON. 55, 66 (1979).
99. Sappington, supra note 38, at 45, 46-49.
100. Rasmusen, supra note 30, at 370 ("For the economist, the agency problem is how to give the agent incentives for the right action; for the lawyer, it is how to 'mop up' the damage once the agent has taken the wrong action.").
101. Jensen & Meckling, supra note 39, at 308 (defining an agency relationship as "a contract under which one or more persons (the principal(s)) engage another person (the agent) to perform some service on their behalf which involves delegating some decision making authority to the agent")
102. Moe, supra note 38, at 756 ("The principal-agent model is an analytic expression of the agency relationship, in which one party, the principal, considers entering into a contractual agreement with another, the agent, in the expectation that the agent will subsequently choose actions that produce outcomes desired by the principal.").
103. Gary J. Miller, The Political Evolution of Principal-Agent Models, 8 ANN. REV. POL. SCI. 203, 205 (2005) (identifying as one of the "core assumptions" of principal-agent models that the agent's action determines in part the payoff to the principal)
104. Shavell, supra note 39, at 55 (describing the principal-agent relationship as one in which the agent's effort, together with a random element, determines the outcome for the principal).
105. Jensen & Meckling, supra note 39, at 308 (discussing how the principal can limit divergences from his interest by establishing appropriate incentives for the agent)
106. Moe, supra note 38, at 756 (asserting that the essence of the principal's problem is to design an incentive structure that makes pursuing the principal's objectives advantageous for the agent)
107. Sappington, supra note 38, at 45 ("The central concern is how the principal can best motivate the agent to perform as the principal would prefer, taking into account the difficulties in monitoring the agent's activities.)
108. Shavell, supra note 39, at 55 (considering optimal fee arrangements to create appropriate incentives for an agent).
109. Kathleen M. Eisenhardt, Agency Theory: An Assessment and Review, 14 ACAD. MGMT. REV. 57, 61 (1989)
110. Moe, supra note 38, at 754-55. The problem of hidden information also arises after the agency relationship has been formed because the agent will likely have more information than the principal about exogenous conditions that affect output
111. Jean Tirole, The Theory Of Industrial Organization 35 n.63 (1988).
112. Moe, supra note 38, at 754-55.
113. Eisenhardt, supra note 45, at 61
114. Moe, supra note 38, at 755.
115. Moe, supra note 38, at 755.
116. Easterbrook &Fischel, supra note 37, at 10
117. Jenson & Meckling, supra note 39, at 308.
118. Easterbrook & Fischel, supra note 37, at 9 (noting that an alternative to monitoring is to give employees the right to share in the firm's profits)
119. Tirole, supra note 45, at 36 (explaining that if the agent's compensation depends on the outcome, the agent will have an incentive to pick the optimal action)
120. Sappington, supra note 38, at 47 (explaining that the principal can motivate the agent "by making the agent the residual claimant in the relationship")
121. Shavell, supra note 39, at 59 (positing that for a risk-neutral agent the optimal fee schedule pays the agent the outcome minus a constant).
122. Eisenhardt, supra note 45, at 60-61 (explaining that agents are assumed to be more risk averse because they cannot diversify their employment).
123. Sappington, supra note 38, at 49.
124. id. at 49-50 (noting that when the agent is effectively insured against bad outcomes, he will exert less effort)
125. Shavell, supra note 39, at 56.
126. Miller, supra note 43, at 206.
127. Moe, supra note 38, at 763.
128. Sappington, supra note 38, at 45 (listing "design of individualized contracts" as one of the "major issues that have been examined in the literature on incentives")
129. Shavell, supra note 39 (studying optimal arrangements for payment in agency relationships)
130. Jensen & Meckling, supra note 39, at 305-06 (using agency theory to explain the ownership structure of firms in a positive rather than nor-mative project).
131. Lawrence C. Dodd & Richard L. Schott, Congress And The Administrative State 170-73 (1979) (asserting that "congressional attention to bureaucratic agencies is haphazard" and that "the committees most responsible for oversight fail to devote the bulk of their hearings to investigations of agencies")
132. Morris S. Ogul, Congress Oversees The Bureaucracy: Studies In Legislative Supervision 182, 186 (1976) (finding that members of Congress see oversight as less central than other work, and noting that legislative oversight is neither comprehensive nor systematic)
133. James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 388 (James Q. Wilson ed., 1980) (arguing that neither the White House nor Congress closely scrutinizes agencies).
134. Ogul, supra note 57, at 193 (summarizing criticisms that legislative oversight "has been sporadic, atomized, erratic, trivial, ineffective, or some combination of these").
135. Dodd & Schott, supra note 57, at 2 (explaining that "agencies are staffed by specialists [whose] expertise [and] technical facilities for data collection and analysis allow[] them to bring to policy struggles an authority and knowledge that is difficult for members of Congress, presidents, or political appointees to match"). (describing the administrative state as a "prodigal child [whose] muscle and brawn challeng[e] [Congress and the President] for hegemony in the national political system")
136. id. at 248 (predicting that "[s]o long as Congress attempts to conduct oversight through the current committee and subcommittee system, congressional committees will probably preoccupy themselves with intra-congressional struggles that leave the bureaucracy broad latitude")
137. Ogul, supra note 57, at 185 (concluding that congressional influence over agencies is "scattered and slight")
138. Wilson, supra note 57, at 391 (arguing that administrative agencies "operate with substantial autonomy, at least with respect to congressional or executive direction").
139. Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765, 768 (1983).
140. Id. at 769-70
141. Barry R. Weingast, The Congressional-Bureaucratic System: A Principal Agent Perspective (with Applications to the SEC), 44 PUB. CHOICE 147, 155-57 (1984).
142. Weingast & Moran, supra note 61, at 767 n.2.
143. Id. at 767, 793
144. Weingast, supra note 62, at 148 (arguing that Congress has developed an effective system for controlling agencies that involves little direct monitoring). Another elaboration of the basic principal-agent model involves recognition that administrative agencies may be subject to the control of multiple principals. Congress is neither a unitary actor nor the lone actor, and thus a number of scholars have incorporated distinct legislative actors relevant House and Senate committees, House floor, Senate floor and a chief executive officer into "multiple principal" models. These extensions have led some to argue that competition among principals may create greater room for bureaucratic discretion
145. Terry M. Moe, An Assessment of the Positive Theory of "Congressional Dominance," 12 LEGIS. STUD. Q. 475, 482 (1987) ("[P]rincipals compete for influence over the agency which, as a result [is] attracted to strategies that play its principals off against one another."). Others have found that the degree of control over the bureaucracy depends on the circumstances and that even with multiple principals bureaucratic agencies may implement policies that reflect the preferences of elected officials
146. Randall L. Calvert, Mathew D. McCubbins & Barry R. Weingast, A Theory of Political Control and Agency Discretion, 33 AM. J. POL. SCI. 588, 589, 604-05 (1989) (modeling interactions between the executive and legislature and bureaucratic agents and concluding that under favorable conditions, bureaucrats will follow the policies of elected officials)
147. Thomas H. Hammond & Jack H. Knott, Who Controls the Bureaucracy?: Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-Institutional Policy-Making, 12 J.L. ECON. & ORG. 119, 163 (1996) (arguing that the interactions between the President and Congress can create more or less autonomy for agencies).
148. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 171-76 (1984) (arguing that "direct, centralized surveillance" of agencies analogous to police patrols will be less effective in furthering Congress's policy goals than will "comparatively decentralized and incentive based" models of oversight analogous to fire alarms).
149. Weingast & Moran, supra note 61, at 767 n.2.
150. Weingast, supra note 62, at 153-54.
151. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243, 249 (1987).
152. Mathew D. McCubbins, The Legislative Design of Regulatory Structure, 29 AM. J. POL. SCI. 721, 722 (1985)
153. McCubbins, Noll & Weingast, supra note 68, at 254
154. Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 440 (1989).
155. McCubbins, supra note 69, at 725-27.
156. McCubbins, Noll & Weingast, supra note 69, at 444.
157. McCubbins, Noll & Weingast, supra note 69, at 444.
158. McCubbins, Noll & Weingast, supra note 68, at 261.
159. McCubbins, Noll, and Weingast Provide A Number Of Examples Of Deck-Stacking
160. For example, "cumbersome procedures favor wellorganized, well-financed interests."
161. Id. at 262 The burden of proof "determin[es] which side will be given the benefit of the doubt."
162. Id. Additionally, Congress can limit an agency's ability to set its own rulemaking agenda.
163. Id. at 267. Congress may even "subsidize" participation by particular interest groups to ensure their input into agency decisions
164. Id. at 266.
165. McCubbins, supra note 69, at 744 (hypothesizing that "Congress as the principal selects an institutional arrangement with its agent so as to maximize the benefit it derives from the agent's performance"). This emphasis on ex ante structural and procedural controls departs from traditional agency theory, which focuses on monitoring and incentives. As Gary Miller writes: The directors of a firm clearly specify to the CEO that they expect[] profits but they do not constrain the CEO by specifying a particular procedure, especially one that may benefit a single subset of investors. Any such procedure would only constrain the profit-maximizing activities of the CEO, and would require constant monitoring either by the board (which is unlikely) or by an external court system (equally unlikely). As a result, the procedural-control argument, although it has been extremely productive of innovative research in political science, represents a discontinuity with PAT, rather than a simple extension of it.
166. Miller, supra note 43, at 215
167. Edgar Kiser, Comparing Varieties of Agency Theory in Economics, Political Science, and Sociology: An Illustration from State Policy Implementation, 17 SOC. THEORY 146, 156 (1999) (noting that the role of administrative procedures is largely absent from the economics agency literature).
168. Weingast, supra note 62, at 148 ("The mechanisms evolved by Congress over the past one hundred years comprise an ingenious system for control of agencies that involves little direct congressional monitoring of decisions but which nonetheless results in policies desired by Congress.").
169. id. at 181 (concluding that "[t]he evidence presented shows that Congress played the key role in the change in SEC policy" regarding deregulation)
170. Weingast & Moran, supra note 61, at 791 (concluding that Congress has "substantial influence" over the FTC)
171. B. Dan Wood & Richard W. Waterman, The Dynamics of Political Control of the Bureaucracy, 85 AM. POL. SCI. REV. 801, 821 (1991) (finding evidence of political control over seven different federal agencies).
172. B. Dan Wood, Principals, Bureaucrats, and Responsiveness in Clean Air Enforcements, 82 AM. POL. SCI. REV. 213, 229 (1988) (concluding that "a principal-agent model fail[s] to explain the longitudinal variations in EPA clean air outputs" and that bureaucracies "are themselves responsible for much of the variation and substance of public policy through time").
173. Compare Steven J. Balla, Administrative Procedures and Political Control of the Bureaucracy, 92 AM. POL. SCI. REV. 663, 670-71 (1998) (failing to find empirical support for the theory that the notice-and-comment process will favor certain constituencies in the manner posited by the deck-stacking thesis),
174. with David B. Spence, Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies, 28 J. LEGAL STUD. 413, 445-46 (1999) (finding empirical support for the claim that structural choices and, to a lesser extent, procedural controls affect agency decisionmaking, although the effects were not necessarily foreseen by political officials).
175. Weingast, supra note 62, at 151.
176. McCubbins, Noll & Weingast, supra note 68, at 243 (raising the concern that unelected bureaucrats will not comply with the political preferences of elected officials)
177. Weingast, supra note 62, at 151 (asking whether bureaucratic agencies serve congressional constituents or their own interests).
178. Moe, supra note 38, at 761.
179. Weingast, supra note 62, at 151 (asking whether bureaucratic agencies serve congressional constituents or their own interests).
180. Weingast, supra note 62, at 151 (asking whether bureaucratic agencies serve congressional constituents or their own interests).
181. id. at 764.
182. Weingast, supra note 62, at 151 (asking whether bureaucratic agencies serve congressional constituents or their own interests).
183. Id. at 762.
184. Id. at 763 Moe argues that "slack is not a functional substitute for the economic residual."
185. Id. at 764. Unlike the residual for a firm, which results from greater efficiency, slack, by definition, becomes more available as the operation becomes more inefficient. Thus, utilizing slack to motivate bureaucrats has "its own distinctive consequences for bureaucratic efficiency and control."
186. Unlike the residual for a firm, which results from greater efficiency, slack, by definition, becomes more available as the operation becomes more inefficient. Thus, utilizing slack to motivate bureaucrats has "its own distinctive consequences for bureaucratic efficiency and control."
187. id. at 765. Further difficulties in effectively using control mechanisms arise because Congress cannot foresee the policy issues an agency will face in the future
188. David B. Spence, Agency Policy Making and Political Control: Modeling Away the Delegation Problem, 7 J. PUB. ADMIN. RES. & THEORY 199, 203-04, 206 (1997).
189. Moe, supra note 38, at 765.
190. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 823-25 (1994) (explaining the doctrine of hierarchical precedent).
191. Kim, supra note 8, at 408-17. Similarly, the need to accommodate differing views among the Justices or uncertainty about the best rule over a broad range of cases may limit the Court's ability to give comprehensive directions to the lower courts through its opinions.
192. See id. In recent years, the percentage of petitions granted review by the Supreme Court has hovered around 1% of all cases and 4% of the paid docket. The Supreme Court, 2008 Term The Statistics,
193. HARV. L. REV. 382, 389
194. tbl.II(B)(2009) The Supreme Court,2007 Term The Statistics,
195. HARV. L. REV. 516, 523
196. tbl.II(B)(2008); The Supreme Court,2006 Term The Statistics,
197. HARV. L. REV. 436, 444
198. tbl.II(B) (2007).
199. See supra Part II.A-B. U.S. CONST. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").
200. U.S. CONST. art. III, § 1
201. 28 U.S.C. §§ 41, 43 (2006)
202. 28 U.S.C. § 132 (2006).
203. John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962, 984-86 (2002) (describing Congress's power over the judiciary's budget).
204. U.S. CONST. art. III, §§ 1-2
205. see also, e.g., 28 U.S.C. §§ 1291-1292 (2006) (defining the jurisdiction of the courts of appeals)
206. id. §§ 1331-1338 (establishing the original jurisdiction of the district courts).
207. 28 U.S.C. § 44 (empowering the President, with "the advice and consent of the Senate," to appoint federal circuit judges)
208. id. § 133 (prescribing the same for federal district judges).
209. Calvert, McCubbins & Weingast, supra note 64, at 604-05.
210. The President and Senate are likely to seek appointment of federal judges who reflect their current preferences. To the extent that those preferences diverge from those of the sitting Supreme Court, they will not be seeking to appoint faithful agents of the Supreme Court but rather lower court judges who are likely to resist pursuing the Supreme Court's preferences.
211. McNollgast has suggested that the political branches might "pack" the lower courts in order to force the Supreme Court to alter doctrine with which the political branches disagree
212. McNollgast, supra note 3, at 1634. Of course, this analysis assumes that the President and the Senate pursue policy goals in the judicial appointments process, begging the normative question of what "type" they ought to be seeking when appointing federal judges. Other personal characteristics such as integrity, judicial temperament, and legal ability should also be relevant.
213. Benesh & Reddick, supra note 1, at 536
214. Cameron, Segal & Songer, supra note 1, at 102
215. George & Yoon, supra note 1, at 822
216. Randazzo, supra note 1, at 673
217. Songer, Segal & Cameron, supra note 1, at 693. For example, in 2008, the United States courts of appeals terminated 28,918 cases on the merits
218. Admin. OFFICE OF THE U.S. COURTS, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY 12
219. tbl.B-5 (Dec. 2008), available at http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederal Judiciary/2008/dec08/B05Dec08.pdf, while the Supreme Court accepted only 87 cases for review in the October 2008 term
220. The Supreme Court, 2008
221. Term The Statistics, supra note 91, at 389
222. tbl.II(B). Even if all the cases in which certiorari was granted by the Supreme Court came from the federal circuit courts, the rate of review would be about 0.3%.
223. Cf. id. (using the Court's 2008 total number of cases granted certiorari to calculate the percentage). Given that some of these cases involved appeals from decisions by state supreme courts, the rate of review of federal circuit court decisions is even lower. The percentage of United States district court cases ultimately reviewed by the Supreme Court is even lower because of the much higher caseload volume in the district courts. For example, in 2008, the district courts terminated by court action more than 178,000 civil actions
224. Admin. OFFICE OF THE U.S. COURTS, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY 37
225. tbl.C-4 (Dec. 2008), available at http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2008/dec08/C04Dec08.pdf, and adjudicated nearly 72,000 criminal cases
226. id. at 51
227. tbl.D-1, available at http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2008/dec08/D01CDec08.pdf. Of these, less than 0.04% are likely to ever be reviewed by the Supreme Court.
228. Cf. The Supreme Court, 2008
229. Term The Statistics, supra note 91, at 389
230. tbl.II(B) (using the total number of cases to which the Court granted certiorari in 2008 to calculate the percentage).
231. Songer, Segal & Cameron, supra note 1, at 693.
232. Commentators have noted the Supreme Court's reduced plenary docket in recent years and debated its causes and consequences
233. Margaret Meriwether Cordray & Richard Cordray, The Supreme Court's Plenary Docket, 58 WASH. & LEE L. REV. 737 (2001)
234. Arthur D. Hellman, The Shrun-ken Docket of the Rehnquist Court, 1996 SUP. CT. REV. 403
235. David M. O'Brien, Join-3 Votes, the Rule of Four, the Cert. Pool, and the Supreme Court's Shrinking Plenary Docket, 13 J.L. & POL. 779 (1997)
236. Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 MINN. L. REV. 1363 (2006). Although the Court could likely increase the number of cases it hears each year, it nevertheless faces significant resource constraints given the volume of lower court decisions. Even if the Supreme Court increased its output five-fold a heroic assumption it could still only review about 1.5% of federal court of appeals cases decided on the merits.
237. See supra note 101.
238. See, e.g., Cameron, Segal & Songer, supra note 1, at 102 (asserting that frequent reversal brings derision of colleagues and decline in professional status)
239. George & Yoon, supra note 1, at 822 (arguing that lower court judges believe that their chance of promotion depends upon reversal rates).
240. Jonathan Matthew Cohen, INSIDE APPELLATE COURTS 44-45 (2002) (concluding, in part based on interviews with circuit judges, that federal appellate judges are not motivated significantly by either a fear of reversal or a desire to be appointed to a higher court)
241. Kim, supra note 8, at 401-02 (questioning whether reversals in fact harm judges' reputations or prospects for promotion)
242. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1, 14 (1993) ("Judges don't like to be reversed (I speak from experience), but aversion to reversal does not figure largely in the judicial utility function.").
243. David E. Klein, MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 126 (2002) (reporting results of various empirical tests that offered "essentially no evidence that [courts of appeals' deference to Supreme Court preferences] results from fear of reversal")
244. Richard S. Higgins & Paul H. Rubin, Judicial Discretion, 9 J. LEGAL STUD. 129, 130, 137-38 (1980) (finding no evidence that judges who are more likely to be eligible for promotion are more sensitive to the risk of reversal)
245. David E. Klein & Robert J. Hume, Fear of Reversal as an Explanation of Lower Court Compliance, 37 LAW & SOC'Y REV. 579, 600-03 (2003) (finding no evidence that circuit courts follow Supreme Court preferences more closely in cases that are more likely to be reviewed and hence pose a greater risk of reversal but concluding that the lower courts generally adhere to Supreme Court preferences despite the low chance of reversal)
246. Donald R. Songer, Martha Humphries Ginn & Tammy A. Sarver, Do Judges Follow the Law When There Is No Fear of Reversal?, 24 JUST. SYS. J. 137, 138 (2003) (concluding that circuit judges generally followed the law in diversity cases, even though the risk of review and reversal in these types of cases is negligible).
247. See supra notes 50-55 and accompanying text.
248. Moe, supra note 38, at 763.
249. supra notes 26-27 and accompanying text.
250. See supra note 43 and accompanying text.
251. Weingast & Moran, supra note 61, at 768 (explaining that members of Congress "gauge the success of [agency] programs through their constituents' reactions")
252. Weingast, supra note 62, at 151
253. asking whether agencies benefit congressional constituencies and hence provide electoral benefits to members of Congress). The impact of bureaucratic action on the interests of political officials, however, is indirect; it depends upon whether public attention is focused on the bureaucracy and on the degree to which elected officials are viewed as responsible for agency outputs.
254. McCubbins & Schwartz, supra note 65, at 167-68 (explaining how members of Congress maximize support by remedying violations brought to their attention by supporters rather than by searching out violations that supporters do not know about and thus cannot reward them for remedying).
255. See supra note 4.
256. Garcetti v. Ceballos, 547 U.S. 410, 415-17 (2006).
257. Connick v. Myers, 461 U.S. 138, 144-46 1983)
258. Pickering V. Bd. of Educ., 391 U.S. 563, 568-70 (1968).
259. Garcetti, 547 U.S. at 421.
260. id. at 421-24.
261. Marable v. Nitchman, 511 F.3d 924, 932-33 (9th Cir. 2007) (finding that plaintiff's allegations of "corrupt overpayment schemes" were not part of his official job duties as chief engineer)
262. Lindsey V. City of Orrick, 491 F.3d 892, 897-98 (8th Cir. 2007) (finding that the plaintiff's speech complaints that the defendant violated state open meetings law was not part of his job duties as public works director)
263. cf. Reilly V. City of Atlantic City, 532 F.3d 216, 231 (3d Cir. 2008) (concluding that a police officer's testimony at the trial of a fellow officer is speech as a citizen and that his claim of retaliation for that speech therefore was not foreclosed by Garcetti).
264. This control over outcomes is what many judicial politics scholars assume represents the Supreme Court's interests, and they therefore characterize divergent outcomes as "shirking."
265. Songer, Segal & Cameron, supra note 1, at 692-93
266. George & Yoon, supra note 1, at 822 (rai- sing the concern that "lower court judges may make decisions that are different from those that the
267. Court would otherwise have made").
268. Garcetti, 547 U.S. at 424.
269. Kim, supra note 8, at 442.
270. Moe raises an analogous question by asking what it means for Congress to control the bureaucracy and arguing that theories of congressional dominance are quite vague about whether control means that agency actions reflect the goals of Congress as a whole, those of the relevant legislative committees, or those of key individual members of Congress.
271. Moe, supra note 64, at 482-83.
272. Songer, Segal & Cameron, supra note 1, at 688-90.
273. Cameron, Segal & Songer, supra note 1
274. Spitzer & Talley, supra note 1.
275. Bueno de Mesquita & Stephenson, supra note 5
276. Jacobi & Tiller, supra note 1
277. McNollgast, supra note 3.
278. Songer, Segal & Cameron, supra note 1, at 693.
279. Benesh & Reddick, supra note 1, at 536.
280. Randazzo, supra note 1, at 685.
281. Songer, Segal & Cameron, supra note 1, at 690.
282. See supra Part II.C.
283. Spence, supra note 87, at 215. Spence raises the question of whether political control may in fact facilitate agency capture.
284. id. at 215-16.
285. Brian J. Cook & B. Dan Wood, Debate, Principal-Agent Models of Political Control of Bureaucracy, 83 AM. POL. SCI. REV. 965, 970 (1989).
286. Weingast & Moran, supra note 61, at 768.
287. B. Dan Wood, Principals, Bureaucrats, and Responsiveness in Clean Air Enforcements, 82 AM. POL. SCI. REV. 213, 231 (1988). On this view, agencies are "agents of the law who, by virtue of delegated authority, are transformed into quasi principals."
288. B. Dan Wood, Principals, Bureaucrats, and Responsiveness in Clean Air Enforcements, 82 AM. POL. SCI. REV. 213, 231 (1988). On this view, agencies are "agents of the law who, by virtue of delegated authority, are transformed into quasi principals.".
289. supra note 8 and accompanying text. Federal judges must swear their allegiance to the Constitution and the laws of the United States upon taking office: I, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as under the Constitution and laws of the United States. So help me God.
290. U.S.C. § 453 (2006). One might just as forcefully argue that the role of the federal courts as a whole is to act as a countermajoritarian institution.
291. Philip B. Kurland, Toward a Political Supreme Court, 37 U. CHI. L. REV. 19, 45 (1969) (arguing that the most important function of the Supreme Court is antimajoritarian in that it is intended to protect minorities against oppression by majorities).
292. Richard Brust, No More Kabuki Confirmations, ABA J., Oct. 2009, at 38.
293. U.S. CONST. art. III, § 1.
294. Caminker, supra note 89, at 823-25 (explaining and justifying the doctrine of hierarchical precedent).
295. Songer, Segal & Cameron, supra note 1, at 675.
296. George & Yoon, supra note 1, at 819
297. Jacobi & Tiller, supra note 1, at 328 (describing "policy errors" as policy outcomes disfavored by the higher court)
298. Lindquist, Haire & Songer, supra note 1, at 608 ("[C]ircuit court compliance with Supreme Court justices' preferences for particular out- comes is far from assured")
299. cf. Clark, supra note 1, at 60 (explaining how an appellate panel, the
300. agent of the circuit, may "follow its own preferences and disregard the Circuit's" preferences).
301. Songer, Segal & Cameron, supra note 1, at 692-93 (interpreting divergent patterns of decisions by liberal and conservative appellate judges as evidence that they sometimes "shirk" by advancing their own policy preferences rather than those of the Supreme Court).
302. Kim, supra note 8, at 410-12.
303. id. at 414-15. Jacobi and Tiller have explored more formally the conditions under which appellate courts might choose one type of doctrine, or "legal instrument," rather than another.
304. Jacobi & Tiller, supra note 1.
305. Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1, 5 n.20 (1994) (citing sources stating that lower courts should decide cases based on existing precedents, not by predicting how higher courts are likely to decide the issue).
306. Caminker, supra note 89, at 839-56 (explaining consequentialist justifications for the doctrine of hierarchical precedent).
307. Evan H. Caminker makes a normative argument that, at least in some circumstances, lower courts should decide cases according to their prediction of how superior courts would decide them.
308. Caminker, supra note 146, at 35-66. More specifically
309. Caminker argues that lower court judges should try to predict future Supreme Court decisions in cases in which "highly probative predictive data are available that is, when fragmented dispositional rules or well-considered dicta clearly foreshadow the Supreme Court's future direction."
310. Id. at 73. These circumstances are "admittedly narrow,"
311. id. at 1, and even if persuasive
312. Caminker's arguments do not necessarily support a generalized duty to follow superior court preferences.
313. Kim, supra note 8, at 436-40.
314. Barry Friedman argues that, throughout American history, the Supreme Court has been influenced by the views of the public because those views can motivate political leaders to follow the Court or to discipline it.
315. Barry Friedman, THE WILL OF THE PEOPLE 375 (2009) ("The Court has to be at-tuned to aroused public opinion because it is the public that can save a Court in trouble with political leaders and likewise can motivate political leaders against it.")
316. id. at 370-71 (asserting that "[t]he people and their elected representatives have had the ability to assert pressure" on the Justices). While this is undoubtedly true to some degree, the question remains as to how responsive the Court actually is to public opinion. Compare
317. id. at 375 (claiming that the Supreme Court Justices may be influenced by public opinion because "they care about preserving the Court's institutional power [and] about not being disciplined by politics")
318. POSNER, supra note 7, at 375 (asserting that Supreme Court Justices are reined in by awareness "that they cannot go 'too far' without inviting reprisals by the other branches of government spurred on by an indignant public")
319. Jeffrey A. Segal & Harold J. Spaeth, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 424-28 (2002) (arguing that there is no evidence that public opinion directly influences the Supreme Court)
320. Law-rence Baum & Neal Devins, Why the Supreme Court Cares About Elites, Not the American People, 98 GEO. L.J. 1515 (2010) (asserting that the Supreme Court is responsive to elites, not public opinion)
321. Richard Pildes not only questions the descriptive claim that political majorities constrain the Supreme Court but also challenges whether the "majoritarian thesis" can answer moral questions about the legiti-macy of judicial review or assure that the Court's judicial review power will be appropriately limited in the future.
322. Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103. Of course, the extent to which the Supreme Court should be responsive to public opinion is also a matter of controversy.
323. Friedman, supra, at 372-74 (worrying that Justices follow public opinion too closely and thus fail to fulfill "the traditional role of judicial review in protecting minority rights"). That latter debate, however, addresses the proper roles of the different branches of government, while my focus here is on the relationship and the allocation of power between the Supreme Court and the lower federal courts.
324. Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB. POL'Y 769, 777-89 (2006)
325. Pildes, supra note 150, at 139-41 (arguing that the appointments process is a much weaker mechanism for political control over the Supreme Court than it was in the past).
326. David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 TEX. L. REV. 1545, 1589 (2009).
327. Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 AM. J. POL. SCI. 231, 238-39 (2007).
328. Law, supra note 152, at 1589 & n.266.
329. John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962, 981-94 (2002) (reviewing tools available to political branches to try to control the judiciary as a whole, such as the appointment power and Congress's ability to control the judiciary's budget and to limit its subject matter jurisdiction).
330. FRIEDMAN, supra note 150, at 375 (asserting that the Court has responded to attempts by the political branches to discipline it through actions such as court-packing and jurisdictionstripping)
331. SEGAL & SPAETH, supra note 150, at 424-25 (arguing that "if Congress has virtually no direct influence on the Court, it is hardly likely that the influence of public opinion will flow indirectly through Congress")
332. Pildes, supra note 150, at 133-39 (questioning the effectiveness of the tools available to Congress to curb the Supreme Court).
333. For example, as Judith Resnik has observed, procedural rules of review entail choices to diffuse or concentrate power among different types of judges or decisionmakers.
334. Judith Resnik, Tiers, S. CAL. L. REV. 840, 850-51, 868-89 (1984). The reverse is also true: value choices regarding the allocation of judicial power do and should inform decisions about institutional design, including rules of procedure.
335. Haire, Lindquist & Songer, supra note 1, at 143-44.
336. Id. at 144.
337. Law, supra note 152, at 1549-64.
338. Id. at 1556-58.
339. id. at 1560-62 (describing the ability of the central bureaucracy to reward and sanction judges for their decisions and explaining that "Japanese judges march out of ideological sync with the bureaucracy at their own peril").
340. Carl F. Minzner, Riots and Cover-Ups: Counterproductive Control of Local Agents in China, 31 U. PA. J. INT'L L. 53, 72-74 (2009) (describing "responsibility systems" applied to Chinese courts).
341. Tonry V. Sec. Experts, Inc., 20 F.3d 967, 974 (9th Cir. 1994) (explaining the "basic tenet of appellate jurisprudence that parties may not unilaterally supplement the record on appeal with evidence not reviewed by the court below")
342. ACHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & CATHERINE T. STRUVE, FEDERAL PRACTICE AND PROCEDURE § 3956.1 (4th ed. 2008) (noting that generally courts of appeals will not consider matter that is not part of the record transmitted by the trial court).
343. Anderson V. City of Bessemer City, 470 U.S. 564, 575 (1985) ("[R]eview of factual findings under the clearly-erroneous standard with its deference to the trier of fact is the rule, not the exception.").
344. Jensen & Meckling, supra note 39, at 357.
345. Segal & Spaeth, supra note 15, at 34 (arguing that "the legal model serves only to rationalize the Court's decisions and to cloak the reality" that Justices decide cases based on their personal policy preferences)
346. id. at 363 (asserting that the legal model "masks the reality of choice based on the individual justices' personal policy preferences").
347. Barry Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261, 262 (2006) ("[R]eflecting an almost pathological skepticism that law matters, positive scholars of courts and judicial behavior simply fail to take law and legal institutions seriously.")
348. Howard Gillman, What's Law Got to Do with It? Judicial Behavioralists Test the "Legal Model" of Judicial Decision Making, 26 LAW & SOC. INQUIRY 465 (2001) (describing criticisms of positive political theorists, or "judicial behavioralists," for failing to take legal variables into account).
349. Bueno de Mesquita &Stephenson, supra note 5, at 757
350. Jacobi & Tiller, supra note 1, at 328
351. McNollgast, supra note 3, at 1641.
352. Jacobi & Tiller, supra note 1, at 331 ("Writing doctrines that specify particular policy outcomes in place of reasoned and consistent application of neutral rules and principles would ultimately weaken the legitimacy of judicial power.").
353. McNollgast, supra note 3, at 1641.
354. Lewis A. Kornhauser, Adjudication by a Resource-Constrained Team: Hierarchy and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605, 1611 (1995) (describing lower courts' motivation in agency models).
355. Bueno de Mesquita & Stephenson, supra note 5, at 757
356. George &Yoon, supra note 1, at 824
357. Jacobi & Tiller, supra note 1, at 327.
358. Jacobi & Tiller, supra note 1, at 330.
359. George &Yoon, supra note 1, at 823-24.
360. Jacobi & Tiller, supra note 1, at 326.
361. Cf. BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING 119 (2010) (criticizing the strategic model of judging as "paint[ing] an implausible picture of judges as magnificent Machiavellian calculators pursuing political agendas with hardly any legal integrity"). As an alternative to the agency model of adjudication, Lewis Kornhauser has proposed a "team model," which he argues explains the institutional structure of the United States courts that is, a system with trials and appellate courts arranged hierarchically, strict vertical precedent, and horizontal precedent binding only at the appellate level.
362. Kornhauser, supra note 172, at 1628. While his proposed model usefully highlights the cooperative aspects of judicial decisionmaking, it does so by assuming that judges at all levels seek to maximize the number of correct decisions and that they share a common understanding of what the "correct" answers are. at 1612-13. Unfortunately, the model's failure to take into account value conflicts within the judiciary limits its usefulness in understanding and predicting judicial behavior.
363. Cameron, Segal & Songer, supra note 1, at 113-14.
364. Id. at 102. If the Supreme Court's only lever of control is its reversal power, then it is theoretically possible that lower courts could "riot" that is, engage in widespread disobedience of a Supreme Court precedent, knowing that the Court would not have the capacity to review all those decisions. Such a reaction would be possible if enough lower courts disagreed strongly enough with a Supreme Court decision and refused to enforce it. In practice, rioting is unlikely because the preferences of lower courts are unlikely to diverge significantly enough from those of the Supreme Court and because lower courts may not be able to coordinate their actions effectively. Nevertheless, massive disobedience by lower courts is theoretically possible. The impact of such actions on the judiciary as a whole could be quite significant, destroying coherence and undermining institutional legitimacy.
365. supra notes 164-65 and accompanying text.