4. Formal models of adjudication and interpretations

4.1. Words to remember:

adhere	придерживаться
stare decisis	судебный прецедент
dissent	разногласия
inferior courts	нижняя инстанция
subsequent courts	выше стоящая инстанция
heterogeneity	разнородность
domain	область распространения
outcomes	результаты, итог
induce	вынуждать, занижать
contingent matter	дело случая
doctrinal	догматический, докренёрский
plaintiff	истец

4.2. Read the text. A Variety of Court Models

Models of courts have several distinct purposes and ambitions. For instance, they may be normative or positive. Normative models prescribe either the structure of adjudication or the behavior of judges, whereas positive models describe these phenomena. Much legal writing about adjudication is normative; much of the literature on adjudication in the economic analysis of law, by contrast, is positive. Here I shall restrict attention to the positive purposes of explanation and prediction.

Within limited range models might still have distinct purposes and structures. Consider purpose first, with respect to which these models fall generally into two broad categories: systemic and behavioral. Systemic models seek to explain various features of adjudicatory systems such as hierarchy, division of labor, and various internal practices of the court. When will a court system exhibit hierarchy? If it is hierarchical, how many tiers will it have?

The model might seek to explain when and what division of labor we might expect to observe in adjudicatory systems. Will some courts specialize in fact-finding, others in error correction, and still others in law creation? When will we observe judges sitting collegially, and when alone? What use will the court make of precedent, the body

of previously decided cases? Will they adhere to a rule of horizontal stare decisis? To a rule of vertical stare decisis? Behavioral models, by contrast, take the structure of adjudication as fixed and seek to explain the conduct of judges and the development of the law within the given institution. How will a court decide a given case? How will a judge vote on a given case? If the court issues opinions, who will write the opinion? Will a dissent occur (if dissents are permitted)? What will the content of these opinions be? Models may address these questions differently in distinct adjudicatory contexts. How are common law cases decided? How are cases of statutory interpretation decided? How are cases of constitutional interpretation decided? Adjudication in civil-law systems presents similar questions. Finally, positive models might adopt different explanatory strategies.

4.3. Answer the questions.

1. To which two broad categories do the models generally fall into?

2. What do normative models prescribe?

3. What do positive models describe?

4. What do systemic models seek?

5. Which model takes the structure of adjudication as fixed and seek to explain the conduct of judges and the development of the law within the given institution?