Is certiorari contingent on litigant behavior? Petitioners' role in strategic auditing

Maxwell Mak, Andrew H. Sidman, Udi Sommer*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


Complementing the burgeoning literature on agenda setting on the Supreme Court of the United States, this article addresses a key question heretofore overlooked-Is the justices' choice to review a decision independent of the selection of cases for review by the litigants? We argue that the certiorari process cannot be modeled as an independent one; rather, it is inextricably linked with and essentially contingent on the behavior of litigants who bring the case to the Supreme Court. This dependence of the Court is important both at the level of theory and at the empirical level and ignoring it entails bias in the estimation process. Using an original database, which includes the universe of religion free exercise cases decided at the courts of appeals from 1968-2006, we find significant selection effects. Factors that influence decisions on certiorari are dependent on the behavior of petitioners and should be modeled as such.

Original languageEnglish
Pages (from-to)54-75
Number of pages22
JournalJournal of Empirical Legal Studies
Issue number1
StatePublished - Mar 2013


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