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9 J.L. & Cts. 1 (2021)

handle is hein.journals/jlawct9 and id is 1 raw text is: The Future Matters JUDICIAL PREFERENCES OVER LEGAL RULES AND DECISION-MAKING ON COLLEGIAL COURTS CAI TL I N A I N S L E Y, University of Washington, USA C L I F F C A R R U B B A, Emory University, USA G E O R G VA N B E R G, Duke University, USA ABSTRACT High courts such as the US Supreme Court announce legal rules that guide subsequent decisions by lower courts and other actors. Because legal rules are forward-looking in this sense, judges' expectations about the distribution of future cases are critical. Focusing on this fact, we provide microfoundations for judicial preferences over legal rules by deriving them directly from expectations about the distribution of future cases. Doing so has important consequences: in contrast to standard assumptions in models of judicial decision-making, preferences over legal rules are asymmetric rather than symmetric. We demonstrate that this has significant implications for judicial decision-making on collegial courts. Finally, we show that changes in the case distribution-for example, as a result of technological change-can lead to significant legal change, even in the absence of ideological or doctrinal change on the court. 1. INTRODUCTION The contemporary formal study of judicial decision-making is dominated by the case- space approach (Kornhauser 1992; Lax 2007, 2012; Lax and Cameron 2007; Fox and Vanberg 2014). What sets this approach apart from earlier formal models of the judiciary (which were largely imported from the study of legislative decision-making) is that it grounds models of judicial behavior in the distinctive nature of what judges and courts do: they settle disputes between specific parties by announcing and applying legal rules to the facts presented in the case before the court. As Lax (2012, 767) expresses it: A case-space model recognizes that a judge makes policy by resolving legal disputes, that We would like to thank Kevin McGuire, Chuck Cameron, Lewis Kornhauser, and John Kastellec for com- ments on earlier versions of this article. Contact the corresponding author, Georg Vanberg, at georg .vanberg@duke.edu. Journal of Law and Courts (Spring 2021) © 2021 by the Law and Courts Organized Section of the American Political Science Association. All rights reserved. 2164-6570/2021/0901-0001$10.00. Electronically published March 8, 2021.

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