An empirical test of the rational-actor theory of litigation

This article examines the decisions of litigants in criminal cases to appeal decisions from the U.S. Courts of Appeals to the U.S. Supreme Court. Using a random sample of search and seizure cases from 1962 through 1990 and a measure of the likelihood that the appeals court decision will be reversed if cert is granted, we demonstrate that litigants behave as if they rationally consider costs and benefits in their decisions to appeal. Given the extraordinary number of cases decided by lower federal courts vis-à-vis the number of cases the Supreme Court can decide, we argue that such behavior is necessary if the Supreme Court is to retain control over the federal judiciary.