3. ModelingCourts lewis a. Kornhauser

3.1. Words to remember

settlement	примирение
litigation	тяжба
tort	вред, убыток
ubiquity	вездесущнность, широкое использование
notoriously	общеизвестно
adjudication	решение, присуждение
legislatures	законодательная власть

3.2. Read the text.

Models constitute a central element in the methodology of economic analysis of law. John Brown’s model of accident law and others’ models of settlement and litigation, for instance, have provided numerous insights into tort law and to civil procedure respectively. Other models have been less successful. Despite their ubiquity, however, the role of models in economic analysis of law has been little discussed. How do models explain? How, or what, do we learn from them? What explains the differential success of models? What makes a model a good one?Under what circumstances ought policymakers rely on the results of a model? These questions are notoriously difficult, in part because the concept of a model is itself unclear. I shall address the question of what makes a “good” model by discussing in detail two narrow classes of models of adjudication that have often been understood as competitive. These classes – which I shall call in the context of courts case space models (but in the more general context of administrative agencies and legislatures fact space) and policy space models – seek to explain the behavior of individual judges.

Models grounded in policy space abstract from the specific cases that, in actual adjudication, trigger judicial intervention and are the occasion for whatever policymaking courts do. Policy space models treat policies as fundamental and cases as nonexistent.Models grounded in case space, by contrast, take cases as fundamental; policies are described in terms of case dispositions.

Policy space and case space models differ in other respects as well. First, the two classes of models identify the domain over which judges have fundamental preferences slightly differently. In policy space models, judges care exclusively about policies; policy space is the domain of preference.

Some case space models adopt a similar domain of preference, but case space models are sufficiently flexible to allow a richer domain of preference that includes both policies and case dispositions. Second, in policy space models, each judge chooses a policy, but in case space, each judge also (or exclusively) endorses a disposition of the case. Finally, and particularly important for models of collegial courts, the court in policy space models again announces a policy, but in case space models the court first renders judgment in the case and may also, incidentally, announce a policy. Policy space models dominate the literature in political science and economic analysis of law.

Moreover, I shall argue that all models of collegial courts, whether starting in case space or not, rely on a common set of formal results. They offer different, but complementary, interpretations of that formal structure. Nevertheless, I shall argue that, for several reasons, case spacemodels have a certain priority over policy space models. First, case space provides microfoundations for policy space. Second, it provides a common framework within which to analyze and differentiate courts from legislatures and administrative agencies.

Each of these institutions has policy effects, but they differ in who sets the agenda and what the agents within them choose or do.Models that begin in case space illuminate these similarities and differences.