Yehonatan Shiman (Ono Academic College Faculty of Law) has posted The Role of Rules – A Model for the Pursuit of Information within the Judicial Hierarchy (29 Cornell Journal of Law and Public Policy 861) on SSRN. Here is the abstract:
This Article examines how the hierarchical structure of the federal judiciary influences the Supreme Court's strategic choice between rules and standards when crafting precedent. Building on the McNollgast theory of judicial doctrine, we challenge the conventional assumption that supreme courts possess perfect information about lower court behavior and preferences. We argue that under conditions of imperfect information, the Supreme Court can strategically employ rule-like precedents as an information-gathering mechanism to observe lower court responses and identify their ideological preferences.
Our central thesis posits that rules, by establishing clear baselines and constraining judicial discretion, make lower court deviations more easily observable than standards would. Since stare decisis requires lower courts to explain their reasoning when distinguishing or resisting precedent, rule-based directives enable the Supreme Court to measure departures and gather critical information about lower court behavior. Armed with this knowledge, the Court can subsequently adjust its doctrine—potentially shifting from rules to standards—to establish optimal doctrinal intervals that both capture its ideal decision point and maximize lower court compliance.
This Article makes three key contributions to the literature on judicial decision-making. First, it offers a novel explanation for the observed pattern of supreme courts initially announcing bright-line rules before subsequently adopting more flexible standards. Second, it demonstrates how the choice between rules and standards serves not merely as a tool for allocating law-making discretion, but as a strategic mechanism for managing information asymmetries within the judicial hierarchy. Third, it suggests that in controversial areas of law where lower court preferences may diverge from Supreme Court objectives, rules—contrary to the predictions of the McNollgast model—may prove superior to standards as an initial doctrinal approach for achieving long-term compliance and doctrinal optimization. Through this analysis, we provide new insights into how supreme courts can leverage the formal characteristics of legal directives to navigate the challenges of judicial hierarchy and advance their institutional objectives.
Interesting and recommended.