What question did this study set out to answer?

The research investigates how dissent from lower courts signals complex legal issues to apex courts and affects their case selection.

April 22, 2026Journal of Law and Courts1 citationsOpen Access

Lower Court Disagreements as Cues for Agenda Setting in the High Court of Australia

RSRussell Smyth PLPat Leslie TJTonja Jacobi

Key Points

The research investigates how dissent from lower courts signals complex legal issues to apex courts and affects their case selection.
Analyzed 8,405 special leave applications to the High Court of Australia from 2003 to 2018
Examined the correlation between dissent on lower courts and case selection in the apex court
Tested predictions about mediating and moderating factors affecting this relationship.
Found that dissent on lower courts significantly influences case selection by the apex court
Confirmed the applicability of cue theory in the context of legal decision-making
Identified complex legal issues as a key factor when selecting cases.

Abstract

Abstract We extend cue theory to examine why and how dissent on the court below acts as a cue to apex courts in selecting the cases they hear. We posit that dissent on the court below is a cue to the apex court that the case involves complex legal issues. To test our predictions about how dissent on the court below affects the selection of cases and factors mediating and moderating this relationship, we use original data on 8,405 special leave applications to the High Court of Australia (2003–2018), finding evidence in support of cue theory.

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