We formulate a new game-theoretic model of bargaining on the U.S. Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an “open rule” for the other justices. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship—its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit to move an opinion from the median without provoking a winning counter-offer. We use this bargaining model as the foundation for a formal analysis of opinion assignment. Both the bargaining and opinion assignment models display rich and tractable comparative statics, allowing them to explain well-known empirical regularities as well as generate new propositions, within a unified and internally consistent framework.
Date of Authorship for this Version
Lax, Jeffrey R. and Cameron, Charles M., "Bargaining and Opinion Assignment on the U.S. Supreme Court" (2006). New York University Public Law and Legal Theory Working Papers. Paper 39.