Active Virtues: Case Attraction in Constitutional Courts

Research shows that “successful” constitutional courts control their own agendas. Specifically, they avoid controversial cases to protect their legitimacy. We show that the power to avoid controversial cases has a logical counterpart: the power to attract uncontroversial cases. By attracting such cases, and resolving them to the satisfaction of powerful actors and the broader society, courts burnish their legitimacy. We provide examples of case attraction drawn from Ecuador, India, Mexico, the United States, and elsewhere. We use these examples to construct a typology of attraction strategies. We relate case attraction to scholarship by Fuller, Hart, Sacks, and others on the appropriate role of courts. Finally, we address a broader question of institutional design: when and why would the state, which often seeks at least limited control over its judiciary, permit judges to attract cases?