Hard Cases Make Bad Law? A Theoretical Investigation

I use formal models to probe the aphorism “Hard cases make bad law.” The analysis illuminates important features of common-law process, especially influence case characteristics on lawmaking and role strategic litigators. When a raises concerns that are not reflected in doctrine, court might distort law avoid hardship. Distortion is more likely when or facts close border legality. Litigators may exploit courts’ attention extradoctrinal by strategically selecting for litigation. Surprisingly though, litigator improves relative random selection—even her preferences far from ideal rule—if over selection modest. effect nuanced has greater power. Finally, incorporates judicial hierarchy with asymmetric information fact-finding discretion.