A DYNAMIC MODEL OF DOCTRINAL CHOICE

This article develops a repeated gamemodel of the choice of doctrinal form by a higher court. Doctrine can take any point along a continuum frommore determinate, rule-like legal commands to more flexible, standard-like directives. In deciding a case, the Supreme Court not only decides on a substantive outcome, but also chooses where on this continuum to set the doctrine. The lower court then applies the legal command to future cases. Indoing so, itmaywish to take intoaccountnew information,but thecost of doing so varies with the form of the legal doctrine. The model shows that in equili-brium doctrine ocsillates over time between more rule-like commands and more standard-like commands. What triggers the shift in doctrinal form are the lower court’s “mistakes ” when trying to implement the standard in the way the Supreme Court prefers. The mistakes induce the Supreme Court to cabin the lower court’s discre-tionby issuingmore rule-like legal commands for a certain number of periods. Toomuch constraint, however, produces error costs when the lower court cannot adjust the law appropriately to new circumstances, leading to a shift back to more standard-like doc-trine. We derive comparative statics showing how the length of the constraint phase responds to the degree of preference conflict between the courts. Finally, we illustrate the features of the model with the evolution of doctrine regarding the Sixth Amendment’s Confrontation Clause. 1