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We study claim resolution. A claim consists of a global fact and a local fact. The global fact is observed by the principal and the agent. The local fact is observed by the agent alone. The agent resolves the claim; the principal decides whether the agent is more likely wrong or right. The principal and agent can disagree about the weight to accord each fact or the overall evidence threshold. The agent cares whether the principal follows or ignores her advice. We characterize how the equilibrium varies with the nature of disagreement. Despite lacking commitment power, we find that the principal grants the agent decision-making authority over an interval of global facts. Further, we find that the principal can better motivate an agent who excessively weights the local fact than an agent who excessively weights the global fact. The principal strictly prefers the former to the latter even though either would make the same number of errors if granted complete autonomy. (JEL C7, K0, D7, K4, M4)

“I would prefer not” HERMAN MELVILLE, BARTLEBY THE SCRIVENER: A STORY OF WALL STREET (1853), reprinted in THE PIAZZA TALES 32, 48 (London, Sampson Low, Son & Co. 1856). Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go further and argue that law may also “shape preferences,” changing people’s wants and values. In this Article, we analyze existing claims that criminal and civil law alter preferences and conclude that none suggest that the law shapes preferences. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and “preference” in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the “serious harm” mechanism; (2) the “social norm” mechanism; and (3) the “self-improvement” mechanism. We then show that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences.

Investigations into the concept of law have attempted to characterize the species “law” without a characterization of the genus “governance.” The failure to attend to the complex concept of governance has led philosophers to see law as a mode, rather than an achievement, of governance. This essay highlights several elements of governance; most importantly, it identifies a distinction between governance structures and functioning governance systems as a central reason for the confusion of modes with achievements. It then introduces the idea of an achievement concept of law. It argues that Hart is best understood as contributing to our understanding of governance generally while Dworkin’s concept of law illustrates the confusion of a mode for an achievement. The essay concludes by noting several advantages of treating law as an achievement.

The practice of horizontal stare decisis requires that judges occasionally decide cases "incorrectly''. What sustains this practice? Given a heterogeneous bench, we show that the increasing differences in dispositions property of preferences generates gains when judges trade dispositions over the case space. These gains are fully realized by implementing a compromise rule – stare decisis. Absent commitment, we provide conditions that sustain the compromise in a repeated game. When complete compromises become unsustainable, partial compromises still avail. Moreover, judges may prefer to implement partial compromises even when perfect ones are sustainable. Thus, stare decisis is consistent with a partially-settled-partially-contested legal doctrine.

In this article, we analyze whether, as some have claimed, the criminal and civil law alters fundamental preferences and conclude that it does not. Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go farther and argue that law may also “shape preferences,” changing people’s fundamental wants and values. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and “preference” in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the “serious harm” mechanism; (2) the “social norm” mechanism; and (3) the “self-improvement” mechanism. We then argue that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences.

Evidence production at trial, the accumulation of patents in a technological race, and lobbying are contests that often involve strategic choices over a discrete set of options. The literature has primarily focused on games with continuous effort choices. We fill this gap by studying a rent-seeking game with discrete effort choices and, for a significant class of games, derive a transformation rule that allows one to find the equilibrium of the discrete game from the equilibrium of the continuous game, which is much simpler to identify. We also discuss the limits of this approach and how well the continuous game approximates the discrete one.

Recent research in experimental law and economics shows that the imposition of a fine, intended to deter some harmful behavior, may crowd out moral motivation: the behavior occurs more frequently even though a payment is charged to discourage it. In A Fine is a Price, Gneezy and Rustichini (2000) suggest that the payment may induce subjects to frame the intended prohibition as a permission in exchange for a price. Obviously, the effect if confirmed may impact almost any form of public regulation or contract drafting. May fines charged for plastic bags in fact increase usage? May penalty clauses in contracts increase the likelihood of breach? Our study tests this theory, distinguishing it from six alternative crowding-out mechanisms and from confounds in Gneezy and Rustichini’s original day-care study. In our experiment, subjects are offered a contract to perform a real effort task. Subjects are paid upon the acceptance of the contract. If they breach the contract, they keep their payment, but burden their partner with an additional workload. We vary our treatments by specifying different amounts that subject need to pay if they do not perform: T1 specifies no payment, T2 stipulates a low fine disproportional to the extra workload imposed, and T3 stipulates a proportional fine; the payments go to the contractual partner. We find the same mean performance level across all three treatments. However, splitting the sample according to the subjects’ social value orientation reveals a strong crowding-out effect in the pro-social group and an offsetting price effect for the pro-self players. Our last treatment, T4, aims to identify the mechanism behind this crowding out effect. In this treatment, the payment is made to the experimenter, instead of the contractual partner as under T2 and T3. In the absence of a transfer between the parties, T4 forces subjects to view the fine as a penalty, instead of an exchange. Results show that T4 crowds in the pro-social subjects’ compliance, providing causal evidence for the Fine-is-a-Price hypothesis.

We explore the properties of voting rules and procedures employed by appellate courts in the US. Our model features: (1) a two-stage decision-making process (first over case disposition, then over majority opinion content), (2) dispositional consistency (the new rule must yield the Court's indicated case disposition when applied to the instant case), (3) restricted bargaining entree (only members of the winning dispositional coalition bargain over policy), (4) competitive offers (potentially many competitive majority opinions), and (5) absolute majority in joins (a majority of the court must endorse the rule in the majority opinion if it is to have precedential power). We show that the median judge is pivotal over case dispositions, although she (and others) may not vote sincerely. Strategic voting becomes more likely as the location of the case becomes more extreme, resulting in majority coalitions that give the appearance of less polarization on the court, than is truly the case. The equilibrium policy depends on the composition of the dispositional majority, and generically does not coincide with the ideal policy of the median judge either in the dispositional majority or the bench as a whole. Rather, opinions are drawn toward a weighted center of the dispositional majority but often reflect the preferences of the opinion author.

What protocol should participants in a collective decision making institution follow? Analysts often implicitly assume that each participant should decide as if she were deciding alone. This essay argues that, in many institutional contexts, the normatively appropriate protocol for deciding together differs from the protocol of deciding alone. The argument is developed through the analysis of two prominent collective decision institutions: the jury and the appellate court., Qual protocolo devem seguir participantes de uma instituição de tomada de decisão coletiva? Analistas assumem, frequente e implicitamente, que cada participante deveria decidir como se estivesse decidindo sozinho. Esse ensaio sustenta que, em muitos contextos institucionais, o protocolo normativamente apropriado para decidir coletivamente difere do protocolo para decidir sozinho. O argumento é desenvolvido por meio da análise de duas instituições de proeminente decisão coletiva: o júri e as cortes de apelação.

Recent research in experimental law and economics shows that the imposition of a fine, intended to deter some harmful behavior, may crowd out moral motivation: the behavior occurs more frequently even though a payment is charged to discourage it. In A Fine is a Price, Gneezy and Rustichini (2000) suggest that the payment may induce subjects to frame the intended prohibition as a permission in exchange for a price. Obviously, the effect if confirmed may impact almost any form of public regulation or contract drafting. May fines charged for plastic bags in fact increase usage? May penalty clauses in contracts increase the likelihood of breach? Our study tests this theory, distinguishing it from six alternative crowding-out mechanisms and from confounds in Gneezy and Rustichini’s original day-care study. In our experiment, subjects are offered a contract to perform a real effort task. Subjects are paid upon the acceptance of the contract. If they breach the contract, they keep their payment, but burden their partner with an additional workload. We vary our treatments by specifying different amounts that subject need to pay if they do not perform: T1 specifies no payment, T2 stipulates a low fine disproportional to the extra workload imposed, and T3 stipulates a proportional fine; the payments go to the contractual partner. We find the same mean performance level across all three treatments. However, splitting the sample according to the subjects’ social value orientation reveals a strong crowding-out effect in the pro-social group and an offsetting price effect for the pro-self players. Our last treatment, T4, aims to identify the mechanism behind this crowding out effect. In this treatment, the payment is made to the experimenter, instead of the contractual partner as under T2 and T3. In the absence of a transfer between the parties, T4 forces subjects to view the fine as a penalty, instead of an exchange. Results show that T4 crowds in the pro-social subjects’ compliance, providing causal evidence for the Fine-is-a-Price hypothesis.

This essay investigates consequentialist reasoning in law. It begins with a brief exposition of the structure of consequentialist reasoning. It then turns to the role of consequentialist reasoning in two aspects of legal decision-making. Legal officials must reason both about ends and about the choice of means to achieve those ends. Legal instrumentalism, however, takes many forms, and different forms identify different officials to engage in the task of reasoning consequentially to choose means. The essay then considers the difficulties posed by the fact that legal decision-makers choose policies or institutions that structure the outcomes they hope to achieve. Finally, the essay considers the role that consequentialist reasoning may play in choosing ends.

This essay disentangles the complex relations between economic logic and legal logic. It distinguishes (a) economic logic as a social process from economic logic as economic reasoning; (b) economic reasoning to explain behavior from economic reasoning to evaluate behavioral outcomes; and (c) legal reasoning in judicial contexts from legal reasoning in other contexts such as legislation and legal enforcement or compliance. It then argues first that economic logic as the logic of social processes deepens our understanding of how law develops and how it influences behavior. But the essay argues second that economic logic plays at best a limited role in the logic of legal reasoning for two reasons. Much legal reasoning seeks to identify the goals we should and do pursue while economic logic takes such goals as given. Further, the instrumental role of economic logic will vary with the institutional context in which legal reasoning occurs.

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.

We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule.The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.

We review the basic building blocks of the case-space approach to modeling courts, particularly cases, dispositions, and rules. We provide numerous examples of case spaces. We clarify the policy-making actions of courts, distinguishing statutory interpretation, review of agency rule-making on procedural grounds, review of agency rule-making on substantive grounds, and constitutional review. We demonstrate that simple versions of the case-space approach are extensible to more complex legal concepts such as evidence, doctrine, and causes of action. We note some of the feed back effects of judicial actions, particularly on the distribution of presented cases, the behavior in society at large, and on social welfare. This essay is a draft chapter of a book-in-progress on the positive political theory of courts.

We model claim resolution and reputation-building by an agent who cannot be fired and whose wages cannot be changed. The agent decides the merits of a claim for relief or allocation of government benefits. On appeal, the appellate body observes a partial picture of the claim. Despite a lack of commitment power, the appellate body grants "soft authority." Many, but not all, resolutions are affirmed. Other resolutions raise red flags and are reversed with positive probability. The agent cares about his reputation because it determines his ongoing soft authority. The model identifies the claim properties that render it an effective vehicle for learning about the agent. It explains many common features of government claim resolution like high affirmance rates; uncertain review standards; and a desire to look for "manifest" error, rather than just error by the agent. The model applies to any judicial and bureaucratic settings where claims are resolved.

We discuss a central question in the study of courts: What do judges want? We suggest three different domains that might serve as the basic preferences of a judge: case dispositions and rules, caseloads and case mixes, and social consequences. We emphasize preferences over dispositions on the grounds of plausibility and tractability. We then identify desireable properties of dispositional utility functions and the relationship between dispositional utility and expected utility for rules. We examine the impact on expected rule utility from case distributions that are sensitive to the enforced rule. We illustrate how to combine dipositional utility with efforts costs and time constraints. We provide examples of case spaces, dispositional utility functions, and expected utility functions for enforced rules. This essay is a draft chapter of a book-in-progress on the positive political theory of courts.

The practice of horizontal stare decisis requires that judges occasionally decide cases "incorrectly''. What sustains this practice? Given a heterogeneous bench, we show that the increasing differences in dispositions property of preferences generates gains when judges trade dispositions over the case space. These gains are fully realized by implementing a compromise rule – stare decisis. Absent commitment, we provide conditions that sustain the compromise in a repeated game. When complete compromises become unsustainable, partial compromises still avail. Moreover, judges may prefer to implement partial compromises even when perfect ones are sustainable. Thus, stare decisis is consistent with a partially-settled-partially-contested legal doctrine.

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.

This essay argues that the doctrinal concept of law is unnecessary. Traditional accounts of the concept of law hold that public officials and citizens undertake a two-step protocol in their practical reasoning. Each first determines what the law requires and then assesses whether her other reasons for actions dictate a different decision. One can, however, replace these two-step protocols with a one-step protocol that globally assesses all reasons for action without making the intermediate determination of what the law requires. Dworkin, in his philosophy of law, essentially takes this position with respect to judges. He reduces the two-step protocol to a one-step protocol. He may thus be viewed as a proto-elminitavist.

This review essay of Fairness versus Welfare evaluates the strategy of incorporation that Louis Kaplow and Steven Shavell use to defend the exclusive use of welfarist criteria in the evaluation of legal rules and institutions. The strategy of incorporation includes every concern that motivates the agent with the agent's preference ordering. More specifically, this extended preference ordering encompasses her concerns arising from deontological constraints and consideration of justice. The essay argues that a strategy of incorporation presents two difficulties for an analyst committed to welfarist evaluation. First, incorporating concerns about rights does not resolve the tension between ex ante and ex post evaluation of institutions. Second, extended preferences should not be aggregated as welfarism directs. The strategy of incorporation ignores the distinction between “preference” (narrowly understood) and “judgment.”

This essay considers two problems in the justification of cost-benefit analysis. First, it argues that because cost-benefit analysis values policies, variation in imputed "values of life" are not, in theory, cause for concern. Second, it argues that the current framework of justification, which focuses on the moral justification of the formal theory of cost-benefit analysis, is inadequate because it ignores (1) the institutional context in which cost-benefit analyses occur, (2) the comparative nature of the justification, and (3) the fact that justification might be indirect rather than direct. Copyright 2000 by the University of Chicago.

Constitutional political economy addresses four questions: (1) the causal question: What explains the constitutional institutions we observe? (2) the consequential question: What consequences do constitutional institutional have? (3) the ideal question: What constitutional institutions does justice require? and (4) the design question: What constitutional institutions are best for a polity given the constraints imposed by its current situation? Answers to the ideal and design questions require a theory of behavior that predicts how individuals will behave within constitutional institutions. Analysts usually assume that this theory of behavior corresponds to the explanatory theory developed to answer the second, consequential question. This essay argues that the assumption of rational self-interested behavior as the basis for a behavioral theory is not justified.

Citizens of a representative democracy are twice removed from legislation. First, they do not deliberate and vote directly on legislation. Rather they elect assemblies that enact such legislation in their stead. Second, and less commonly remarked, citizens do not vote directly for assemblies. Rather they vote for individual candidates, with the candidates receiving the most votes elected. We examine the efficiency properties of these voting systems.

* Professors of Law, New York University. We acknowledge the generous financial support of the Filomen D'Agostino and Max E. Greenberg Research Fund at the New York University School of Law and the support of the C. V. Starr Center for Applied Economics at New York University. Prior versions of this article were presented at the Conference on the Law and Economics of Environmental Policy, organized by the European Association of Law and Economics and the Geneva Association, Paris, April 1991; at the Comparative Law and Economics Forum, Berkeley, October 1992; and at workshops at the New York University School of Law, University of North Carolina School of Law, and Stanford University Law School. Edward Sherry's extensive comments were very helpful; we also appreciate the valuable suggestions of Marcel Kahan and Kathryn Spier. We are grateful for the research assistance of Kent Chen, Marcel Hawiger, and Jeffrey Spear. ' The classic single-defendant works are John P. Gould, The Economics of Legal Conflicts, 2 J. Legal Stud. 279 (1973); William M. Landes, An Economic Analysis of the Courts, 14 J. Law & Econ. 61 (1971); Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399 (1973). The problem of multidefendant settlements is analyzed in Frank H. Easterbrook, William M. Landes, & Richard A. Posner, Contribution among Antitrust Defendants: A Legal and Economic Analysis, 23 J. Law & Econ. 331 (1980); and A. Mitchell Polinsky & Steven Shavell, Contribution and Claim Reduction among Antitrust Defendants: An Economic Analysis, 33 Stan. L. Rev. 447 (1981). These articles deal with a case in which the plaintiff's probabilities of success against each of the defendants are perfectly correlated and thus cover only a narrow slice of the problem that we examine. The approach of the Easterbrook, Landes, & Posner article is followed, without major modification, in Jong Goo Yi, Litigations with Multiple Defendants: How to Settle under Different Apportionment Rules 73-82 (unpublished Ph.D. dissertation, Stanford Univ., February 1991). In a recent paper, Jeffrey Lange studies, in a multiple-defendant context, possible contractual arrangements between a plaintiff and one or more defendants. Jeffrey Lange, Litigation Risk Exchange: An Economic Analysis of Sliding-Scale Settlements (unpublished manuscript, Univ. Pennsylvania Law School 1993). He addresses only the case of perfectly

THIS article studies the problem of multidefendant settlements under joint and several liability when the defendants have insufficient solvency to satisfy the plaintiff's claim. Potentially insolvent defendants are common in important areas of law such as toxic torts and Superfund, but the law and economics literature has not paid attention to this problem.' The article considers four separate questions in the context of a model in which the plaintiff litigates against one defendant with full solvency and one with limited solvency: (1) the effects of insolvency on the choice between settlement and litigation under joint and several liability, (2) the comparison of the effects of insolvency under joint and several and non

Courts have traditionally limited judicially approved settlements to compensatory or single damages even in class actions based in Federal civil antitrust law where trebling of damages is mandatory upon a finding of liability. This paper analyzes the effects of such settlement caps for both single and multiple defendants and shows such caps: (1) reduce settlement and (2) introduce additional conflicts of interest between plaintiff and defendant or defendants. The multi-defendant analysis is done both for defendants whose outcomes are perfectly correlated and independent. In a second part, the paper provides an empirical analysis of the Auction Houses case showing the effects of the limitation in actual practice and demonstrate how the model might be used by decision makers to assess the fairness of actual settlements

In a representative democracy, citizens do not vote directly over assemblies but instead for individual candidates, who then constitute the assembly that enacts the legislative program. This complicates our ability to define what is meant by sincere voting, which can be divided into two concepts: expressive and simple voting. We present the results of an experimental study of voting over candidates in assemblies in which the predictions of expressive and simple voting diverge. We find that subjects predominantly vote simply rather than expressively. However, we find that when the voting situation is complex either in that voters have heterogeneous preferences or the simple voting strategy involves voting for a least preferred candidate instead of a highly preferred candidate, voters are more attracted to expressive voting. Hence, significant simple voting occurs, but the extent is highly dependent on the voting situation.

Contract law and the economics of contract have, for the most part, developed independently of each other. In this essay, we briefly review the notion of a contract from the perspective of lawyer, and then use this framework to organize the economics literature on contract. The review thus provides an overview of the literature for economists who are interested in exploring the economic implications of contract law. The title, Contracts between Legal Persons, limits the review to that part of contract law that is generic to any legal person. A legal person is any individual, firm or government agency with the right to enter into binding agreements. Our goal is to discuss the role of the law in enforcing these agreements under the hypothesis that the legal persons have well defined goals and objectives.

Contract law and the economics of contract have, for the most part, developed independently of each other. In this essay, we briefly review the notion of a contract from the perspective of lawyer, and then use this framework to organize the economics literature on contract. The review thus provides an overview of the literature for economists who are interested in exploring the economic implications of contract law. The title, Contracts between Legal Persons, limits the review to that part of contract law that is generic to any legal person. A legal person is any individual, firm or government agency with the right to enter into binding agreements. Our goal is to discuss the role of the law in enforcing these agreements under the hypothesis that the legal persons have well defined goals and objectives.

We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes "judicial" rather than legislative or electoral objectives by the actors. The model makes clear and often novel predictions about the plurality opinion's location in "policy" space; the case's disposition; and the size and composition of the disposition-, join-, and concurrence-coalitions. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new departures for empirical work on judicial politics. This paper substantially revises a prior version dated July 1 2009.

Empirical studies of collegial courts typically analyze the dispositional votes of judges. Theoretical models of collegial courts, by contrast, typically assume that judges care about, and choose, policies. In this paper, we use data on the behavior of justices of the Supreme Court of the United States (from the Spaeth Supreme Court Database, 1953-2008) to show that this discrepancy is not innocuous: dispositional votes are different from policy choices, and that difference has implications for understanding the doctrine the Court produces. We present evidence that disposition coalitions differ from policy coalitions in a significant number of cases, and argue they differ along ideological lines. For this reason, we claim dispositional votes are not an adequate proxy for policy choice. Our preliminary analysis establishes two other claims. First, we show that within a natural court, policy coalitions are diverse rather than homogeneous. Second, we present evidence that the ideological content of opinions moves in tandem with the ideological makeup of the policy coalition supporting the majority opinion.

Many analyses of courts within the economic analysis of law are indistinguishable from those produced by positive political theorists; they consider how judges control, exploit, or resolve conflicts of interest among judges. This article considers three contributions by economic analysts of law outside this common, positive, political theoretic model but which still exploit the tools of rational-choice theory. These contributions either integrate appellate decisio -making within a more comprehensive model of litigant and trial behavior; assume that judges constitute a team with shared preferences; or assume that judges decide cases rather than announce or implement policies. These three elements yield a substantively different understanding of courts than the standard model of positive political theory (PPT). The assumption of shared preferences explicitly rejects the principal-agent model that is standard in PPT. The integration of appellate decision making with other aspects of the disputing process and the shift from policies to cases are consistent with, but potentially transformative of, the standard principal-agent models of adjudication.

We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes 'judicial' rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion’s location in 'policy' space; the case’s disposition; and the size and composition of the disposition, join, and concurrence - coalitions. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new directions for empirical work on judicial politics. This paper substantially revises a prior post 'Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting and Adjudication Equilibria.' The current version presents the model more clearly but it lacks a number of illustrative examples and figures that appear in the prior version.