The Value of Vagueness: Delegation, Defiance, and Judicial Opinions

An established line of research demonstrates that vague judicial opinions are less likely to be implemented than clear opinions. Vague opinions thus present a puzzle. Why would judges craft opinions that risk non-compliance? We argue that the relationships between judges and other policymakers in separation-of-powers systems are central to understanding this puzzle. Opinion vagueness reflects efforts to resolve core tradeoffs associated with judicial policy making that bear some resemblance to standard accounts of political delegation. Vagueness offers judges the ability to manage their uncertainty over policy outcomes and to hide likely defiance from public view. At the same time, vagueness removes a central source of pressure for compliance that judges can place on other policymakers. Using a game-theoretic model, we identify conditions under which judges use vagueness precisely as legislatures use statutory discretion. We also demonstrate conditions under which judges use vagueness in ways unanticipated by standard delegation accounts.