Information and Judicial Review

A Signaling Game of Legislative-Judicial Interaction

Bibliographic Data

ID11623976
AuthorsJames R Rogers (0000-0001-5335-2358, Mitchell Institute, corresponding author)
Year2001
Volume45
Issue1
Pages84-84
Publication date2001-01-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueAmerican Journal of Political Science (JOURNAL)
Journal identifiersISSN: 0092-5853 • E-ISSN: 1540-5907
PublisherWiley (PUBLISHER • GB)
DOI10.2307/2669361
OpenAlexW2322960473
LanguageEN
Citations received90
References cited12

This article develops a simple signaling game in which a Legislature and a Court interact in seeking their own policy goals. The Legislature faces two sources of uncertainty when legislating. First, it knows only probabilistically whether Court's preferences converge or diverge from its own on proposed law. Second, its knows only probabilistically true state of world and, hence, does not know with certainty whether law will reasonably achieve its intended outcome if enacted. For institutional and sequential reasons, Court has more information regarding actual consequences of an enacted law than Legislature did when initially considering it. As a result, Court's exercise of judicial veto may (but not necessarily will) be informationally productive. The possibility of informative judicial review affects quantity and informational quality of legislation enacted by Legislature relative to legislation that would be enacted in absence of judicial review. Further, an informational component to judicial review alters incentive that Court has to act strategically relative to incentives for strategic behavior in purely distributive models of legislative-judicial interaction. Finally, because of possibility of informative judicial review, model accounts endogenously for creation and maintenance of an independent judiciary by a Legislature that solelyvalues achieving its preferred policy outcomes. a A Then considering a proposed bill, legislators face uncertainty regarding outcome they want bill to achieve and outcome that law actually will have when implemented and enforced (Krehbiel 1991, 62). Legislative decision making thus requires prediction as legislators look forward to anticipate impact a proposal might have if enacted. contrast, judicial policy-makers tend to be more backward looking. They review laws in light of their realized consequences. This difference critically distinguishes informational context of legislative decisions from informational context of judicial decisions. As Felix Frankfurter noted, In availability of which underlie litigation, there is a wide gulf between opinions in advance of legislation ... and decisions in litigation after such proposals are embodied into law or carried into execution (1930, 478). As a result, in the crucial cases, differing judgments of legislature and court over policy resolve ... not really to a difference about law, but to differences in knowledge of relevant and inferences drawn from such facts (Frankfurter 1924, 1004). Yet judiciary's distinctive informational role in policy process and how it influences judicial and legislative behavior has attracted little systematic attention from political scholars.' This article builds upon earlier preference-based models of legislative-judicial interaction by recognizing informational component of judicial review and incorporating it in a game-theoretic model along with assumption that Court is a policy-motivated actor.2 Adding an infor

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