Why do policy-motivated justices conform to unfavorable precedents? The role of social-legal backgrounds and precedential characteristics

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Abstract

Why do policy-motivated justices conform to unfavorable precedents? This article suggests that two theories, social-legal backgrounds and precedential characteristics, help explain why justices support unfavorable precedents. To test the explanatory power of these theories, the article uses data from the 1953–94 terms that ascertains whether justices cast precedential votes. The results, after testing multiple indictors of each theory, suggest that precedential voting is more likely when cases have older landmark precedents, cases have positive precedent vitality, and justices have a strong social-legal background. However, the likelihood of precedential voting decreases when justices have an elite legal pedigree and when justices confront a well-cited landmark precedent. This implies that future tests of legal decision making need to sort out the ambivalent effects of precedent and social-legal backgrounds.

Original languageEnglish
Pages (from-to)69-95
Number of pages27
JournalJustice System Journal
Volume33
Issue number1
DOIs
StatePublished - 2012

ASJC Scopus subject areas

  • Law

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