Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court's ability to craft legal doctrines that both shape a trial court's initial decision and increase the efficacy of appellate monitoring. After identifying numerous strategies for increasing lower court control, this Article argues that appreciating the links between them helps illuminate recent developments in three areas of public law: the constitutional law of punitive damages;the rules governing “officer suits” brought under 42 U.S.C. § 1983;and the concept of “reasonable” searches and seizures under the Fourth Amendment. Reprinted by permission of the publisher.
Toby J. Heytens,
Doctrine Formulation and Distrust,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol83/iss5/4