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Follow-Up Citations in the U.S. Supreme Court

1986; University of Utah Press; Volume: 39; Issue: 3 Linguagem: Inglês

10.1177/106591298603900313

2325-8675

Charles A. Johnson,

Law, Economics, and Judicial Systems

T) HE QUESTION addressed in this article is straightforward Why does the Supreme Court cite and follow some of its previous while ignoring or distinguishing others? This question is important for the emerging literature on citation behavior among courts which views the citation of past cases as important indicators of communication (Caldeira 1985; Harris 1979), legitimacy (Friedman et al. 1981), status of the law (Landes and Posner 1977; Merryman 1977), or changes in the law over time (Merryman 1977; Johnson 1981). For these scholars, citations to previous are important because inform us about the institutional side of law that is, law as a system of rules which may constitute a language and a constraining force on extra-legal factors affecting judicial (Brigham 1978). A major assumption of past citation research is that citations are more than casual references in judicial opinions and that, in fact, represent an attempt to legitimize by linking past to contemporary ones. As Lawrence Friedman et al. note, judges are expected to decide according to law, which means that they are not free to decide cases as please, [but instead] are expected to invoke appropriate legal authority for their decisions (1981: 793). To the degree that citations are systematic, and the assumption is false that are casual or random, then researchers may, indeed, use them as reasonable indicators of such phenomena as communications among courts. The research reported here tests two competing explanations for references to Supreme Court by the Court itself. One explanation emphasizes personal or political factors, thus viewing such references as products of the ego or ideology of the citing judge. The other explanation views references as a functon of such legal concerns as clarifying past policy or applying precedent when appropriate. These two explanations are elaborated below, and are followed by presentation of research findings on follow-up citations by the Court.