Why Do Courts Delay?

Answering one question often begets another. We present a decision-theoretic model that describes how this dynamic sequences decisions over time. Because answering an easy question may raise a more difficult one, a rational decision-maker may delay resolution even if he has perfect information about the correct decision. Furthermore, because otherwise unrelated questions may raise similar follow-ups, he may optimally clump decisions together. Our theory thus generates an endogenous economy of scale in dispute resolution and contributes to the literature on punctuated equilibrium theory. We illustrate the results of our model with a case-study from legal history in the United States. ∗We thank Mike Giles, Adam Glynn, Jon Nash, Jeff Staton, Tom Walker and seminar participants at Emory University, Yale University, the University of Georgia, and The Institute for Advanced Study in Toulouse for helpful comments and discussions. An earlier version of this paper was presented at the 2015 annual meeting of the Southern Political Science Association and the 2015 annual meeting of the Midwest Political Science Association. †Department of Political Science, Yale University. Email: [email protected]. ‡Department of Political Science, Emory University. Email: [email protected]. §Department of Political Science, University of Chicago. Email: [email protected]. Dispute resolution is a perpetual task. New problems continue to arise—sometimes, the very resolution of one issue can instigate another. How should a court—tasked with resolving disputes as they arise, but free to postpone resolution if necessary—behave if it is aware of this? In a vacuum, a court may prefer to resolve disputes as soon as possible; but this preference might be mitigated by the expected downstream consequences of resolving any given dispute. Sometimes action today begets more action tomorrow, potentially making the cure worse than the disease. In this paper we explore these issues in the context of supervisory courts, which encounter many of the strategic dilemmas associated with dynamic dispute resolution. Many appellate courts have discretionary dockets that allows them to decide which cases to hear and when, including high courts in the US states (e.g., ?) and constitutional courts around the world (e.g., Fontana, 2011). The U.S. Supreme Court, which we use as an illustrative example, is one of the most widely studied such courts. The Supreme Court, and similarly organized apex courts, face the complex decision of structuring the sequence of cases it will hear over time. Since the common law tradition implies that subsequent disputes will be adjudicated in the context of previous decisions, this sequencing decision is important. Any disposition hinges on one or more clarifying questions and definitions that can travel to subsequent disputes.1 As a step toward a general understanding of these, and related, aspects of sequential adjudication, we introduce the dynamic resolution framework. We analyze the dynamic quandary faced by a unitary actor making decisions over a finite period of time. First, our model highlights the cautionary effect of foresight. Oftentimes, courts decline to decide issues that on their own seem easy to solve. However, because resolving that dispute might (or will) raise subsequent disputes, the courts may decline to “wade into the waters.” Second, our model highlights a heretofore unexplored consideration for whether a case is ready to be resolved, that turns on shared progeny with other cases. In our model, some long-simmering disputes will be resolved because other disputes have arisen. These two findings help provide theoretical microfoundations for empirical patterns in the evolution and development of legal and political issues. Such patterns have been the subject of 1Patty and Penn (2014) provide a positive model of the importance of explanations in policymaking—their theory investigates the collective implications and importance of the type of path-dependence that the theory presented in this article derives from first principles.