4.4. Read the text.

To complete this taxonomy of models of adjudication one must identify the number of, and relation among, the judges in the model. Thus, the analyst may introduce additional judges, either on the same court, deciding collegially, or on inferior courts or on subsequent courts. In this context, models must specify the degree of heterogeneity in the preferences of the judges. In team models, judges have identical preferences. In political (sometimes called principal–agent) models, judges have heterogeneous preferences.

When the domain of fundamental preference differs from the domain of choice or the domain of outcomes, the judge may nevertheless have induced preferences over her choices or over adjudicatory outcomes. That is, her fundamental preferences over X (say, policies) allow her to rank, say, her actions. But the existence of induced preferences over these domains is a contingent matter; it depends on the structure of her preferences over this basic domain. See the following for an example in which a judge with fundamental preferences over policies does not have well-defined preferences over case dispositions.

Political models generally assume that judges decide cases on the basis of their personal, ideological preferences and beliefs. Legal models, by contrast, generally assume that judges decide cases on the basis of the “law,” which many lawyers and most political scientists assume is independent.

Again, consider our simplest accident example (with a single state of the world and fixed technology, costs, and damages). Define the policy evaluation space as a two-dimensional assessment of the policy: the total number of accidents that occur under the policy and the percentage of accident expenditures borne by injurers. In the following, I will argue that the assessment of policy requires that we consider out-of-equilibrium consequences. Finally, consider doctrinal space.

In the most complex, there are two issues: cause and care. A specific doctrine partitions each issue into two sets, one in which plaintiff prevails on the issue and one in which defendant prevails. These two partitions then yield a partition of case space; to prevail in the case, plaintiff must prevail on both issues. Another doctrinal frame, called the causal frame, might have a single issue that depends on only the realized causal chain. A third frame would rely on the single issue of care. A fourth would be absolute: either plaintiff always prevails or she always loses. The judge then has a preference over the structuring of doctrine; she believes that doctrine ordered around standards of care – choosing policies from the class of negligence rule policies – is better than some no-fault doctrinal structure. This definition coincides with the definition of doctrine offered in Kornhauser, “Modeling Collegial Courts II.”

5. Is There a Method to the Madness?

Michael b. Dorff and Kimberly Kessler Ferzan

5.1. Words to remember

be rife	изобиловать
insider	осведомлённое лицо
insider trading	коварные, лукавые торги
produce incentives	стимулировать
imminent	неизбежный, 100% ый
hazard	рисковый, опасный
inherent	присущий, своственный