ABSTRACT
We investigate the conditions that support or suppress legal innovation through a formal model that incorporates a litigant’s strategic decision about how to frame a case. Litigants’ legal innovation depends on the distribution of judicial ideology and aptitude, meaning a judge’s ability to adjudicate innovative legal arguments. We show that judicial aptitude sometimes matters more than ideology to fostering legal innovation (though sometimes ideology matters more, and sometimes innovation requires a favorable distribution of both or neither). Another important result is that litigants are not always more likely to innovate when they have a stronger case or are more sympathetic; a weaker litigant may be more likely to innovate. Our results also have important implications for empirical estimation of judicial ideology: Measures purporting to transcend jurisdictional or temporal boundaries are prone to error, and ‘bridging’ techniques employed to yield comparable estimates across different courts and time periods are often inadequate to deal with the strategic selection effects we identify. Finally, we show that giving parties an option outside litigation does not necessarily increase legal innovation in litigated cases.
Shahshahani, Sepehr and Beim, Deborah, Judges, Lawyers, and Legal Innovation (October 5, 2026), Journal of Law, Economics, & Organization (forthcoming).
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