In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state's appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high court explained that the amendment's purpose was to reduce the "avalanche of opinions emanating from [the] Appellate Court," which was causing legal research to become "unnecessarily burdensome, difficult and costly." This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method we introduce here can be seen as a sort of revealed-preferences approach: when forced to choose, which types of opinions were these courts more likely to continue publishing, and which types were they more likely to abandon? Our method, which seems straightforward, has turned out to reveal more than we expected: it has uncovered more than the simple priorities raised in the thought experiment above. One especially surprising pattern forces us to develop new theories about how higher-level judicial priorities, such as a concern for outward appearances, compete for influence over judicial choices.
Bert I. Huang & Tejas N. Narechania,
University of Pennsylvania Law Review, Vol. 163, No. 6, p. 1719, 2015; Columbia Public Law Research Paper No. 14-496
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1943