Legal Process, Legal Realism and the Strategic Political Effects of Procedural Rules

28 Pages Posted: 6 Nov 2005

Date Written: October 2005


While decisions on procedural requirements in litigation might be considered the most purely legal decisions made by courts, realists have contended that even procedures are tools of ideological decisionmaking. Realists argue that the apparently neutral procedural requirements are created or applied precisely for their ideological implications. There are several forms of realism, though, that have not been distinguished. In absolute realism, each judge can justify his or her preferred outcome in the case, while a more sophisticated realism accepts that lower court judges' decisions are restrained by legal doctrines created for the very purpose of manipulating their ideological outcomes. In this study, the effects of certain procedures are tested via a large database of circuit court decisions, using threshold requirements such as jurisdiction and standing. The direct effect of the threshold procedures by dismissing actions is a consistently conservative one, as projected by the realists, and the procedures serve as a legal doctrine that produces systematically conservative consequences. The quantitative empirical results demonstrate that procedural threshold requirements have a profoundly conservative effect on judicial outcomes, especially in federal statutory cases. A study of the precedential effect of these decisions shows that it is self-multiplying, such that decisions on procedural threshold issues have considerable precedential impact on later court rulings.

Suggested Citation

Cross, Frank B., Legal Process, Legal Realism and the Strategic Political Effects of Procedural Rules (October 2005). U of Texas Law, Public Law Research Paper No. 80, U of Texas Law, Law and Econ Research Paper No. 065, Available at SSRN: or



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