Judges, Creative Lawyers, and Legal Innovation

• In Event: Methods and Measures

Abstract

Political science has made great strides in modeling legal doctrine, but existing models have little to say about the art of lawyering because they take a case’s legal frame as given. In fact, however, advocates make important strategic decisions about the legal theory of a case. We present a formal model that considers a lawyer’s decision about how to frame or theorize a case and relates such lawyerly innovation to judicial ideology and aptitude, where aptitude or creativity is conceptualized as a judge’s ability to adjudicate innovative legal arguments. One important result is that lawyer-initiated doctrinal innovation will not take place below a population threshold of judicial aptitude. This result relates to qualitative and quantitative empirical literature about the selection of creative or intellectual types into the legal profession in common law countries. Another important result is that judicial aptitude matters more than judicial ideology in fostering lawyer-initiated legal innovation. Specifically, under mild assumptions about judicial behavior, for any given distribution of judicial ideology (no matter how hostile), there exists a level of aptitude sufficiently high to guarantee that lawyer-initiated legal innovation will take place with positive probability. The converse, however, is not true: It is not true that, for any distribution of judicial creativity (no matter how low), there exists some level of ideological receptivity high enough to guarantee the survival of lawyer-instigated doctrinal innovation. In addition to shedding light on the circumstances fostering or enfeebling legal innovation, our results have important implications for empirical estimation of judicial ideology. Because, as we show, lawyers’ decisions about how much to push the bounds of existing doctrine depend on their expectations about judicial ideology, measures of judicial ideology that purport to transcend jurisdictional or temporal boundaries are prone to error. Similar selection effects complicate empirical efforts to estimate whether legal arguments are conventional or boundary-pushing based on their success rate. In extensions, we are exploring the conditions under which creative lawyering does or does not advance a client’s interest. The potential tension between the outcome of a given case and the general development of law raises important questions about the ethics and strategy of movement lawyers and impact litigation.

Authors

• Sepehr Shahshahani, Fordham Law School

• Deborah Beim, University of Michigan, Ann Arbor