Monday, December 7, 2009

Eisenberg & Huang on Supreme Court Jurisdiction Shifting from Mandatory to Discretionary

Theodore Eisenberg (Cornell University School of Law) and Kuo-Chang Huang (Institutum Iurisprudentiae) have posted "The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary--An Empirical Lesson from Taiwan" on SSRN.  

The abstract states:

Theoretical works suggest that granting a supreme court discretion in choosing the cases to be decided on the merits could shift dockets away from traditional case-based adjudication and towards issue-based adjudication. According to this prediction, legislatures can recast supreme courts’ roles in society by modifying jurisdictional rules. This study tests this prediction empirically. Using a newly assembled data set on appeals terminated by the Taiwan Supreme Court for the period 1996-2008, we study the effect of jurisdictional-source procedural reform, a switch from mandatory jurisdiction to discretionary jurisdiction in 2003, on the Taiwan Supreme Court’s performance. Our study shows that the 2003 reform failed to transform the function of the Court from correcting error to a greater role in leading the development of legal doctrine as intended by the legislature. Our findings suggest that a supreme court can adjust the way it conducts business according to its own preference and the role it defines for itself, which are influenced both by the background against which it operates and the inertia of its members’ working habits. Our study informs policy-makers that merely amending procedural rules, without more, is unlikely to change the function of a supreme court. Our findings also suggest that statutorily dictated mandatory jurisdiction may not be implemented by a high court faced with caseload pressure.

~clf

http://lawprofessors.typepad.com/civpro/2009/12/eisenberg-huang-on-supreme-court-jurisdiction-shifting-from-mandatory-to-discretionary.html

International/Comparative Law, Recent Scholarship | Permalink

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