Rights, Remedies, & Relief

• In Event: Formal Models of Bureaucratic and Judicial Politics

Abstract

Agreeing simultaneously on multiple issues can be more difficult than agreeing on one. Judicial decision-making is no exception. Judicial bargaining models often concern only one dimension; even when considering two, one is often a valence dimension. I construct a model in which a multi-member court bargains explicitly over two policy dimensions and implicitly over a case's outcome. How does our understanding of judicial bargaining change when we consider this bifurcation of most rights and remedies in the U.S.? I argue this institutional feature—paired with discretion over within-case issue order—permits courts to leverage trade-offs over these interdependent issues and their related outcome to (1) hold a party has a right without a remedy, (2) develop the law by denying relief when otherwise unable to make policy, and (3) deploy immunity doctrines to limit relief. The model's equilibria illustrate the institutional advantages to judges who prefer no relief be granted that arise in a legal system in which judges possess discretion over within-case issue order over bifurcated issues. The findings extend our understanding of the Doctrinal Paradox, explain salient policy issues such as qualified immunity, have implications for in- and out-of-court advocates alike, and lend themselves to empirical evaluation.

Author

• Sam England, Emory University