Splitting the Difference: Modeling Appellate Court Decisions with Mixed Outcomes

Article excerpt

In rendering a decision in a particular case, judges are not limited to finding simply for the appellant or for the respondent. Rather, in many cases, they have the option to find for the former on one or more issues and for the latter on one or more other issues. By thus "splitting the difference," judges can render a judgment that favors both litigants to some degree. What accounts for such mixed outcomes? Several theoretical perspectives provide potential explanations for this phenomenon. First, Galanter (1974) suggests that litigants with greater resources will achieve more favorable outcomes in the courts. Where two high-resource, repeat-player litigants meet in the appeals courts, these more sophisticated and successful parties may be able to persuade the court to render decisions with mixed outcomes that at least partially favor each party. second, split outcomes may result from strategic interactions among the appeals court judges on the decisionmaking panel. Where majority opinion writers seek to accommodate other judges on the panel, split outcomes have the potential to serve as an inducement for more ideologically extreme judges to join the majority opinion. Finally, Shapiro and Stone Sweet (Stone Sweet 2000; Shapiro & Stone Sweet 2002) propose that courts will sometimes split the difference in order to enhance their legitimacy (and ultimately enhance compliance by losing parties). For example, in highly salient cases, where noncompliance would more clearly threaten court legitimacy, judges may be more likely to split the difference in order to mollify even the losing party. We develop an empirical model of mixed outcomes to test these propositions using data available from the U. S. Courts of Appeals Database and find evidence supportive of all three theoretical perspectives.

When social scientists consider court outcomes, they often think in terms of the dichotomous choice of finding for one party or the other. Yet court outcomes are not always structured so as to completely favor one party over the other. At the appellate level, the existence of cross-appeals or multiple claims means an appeal really represents a cluster of "disputes" or legal issues, all of which require resolution. Though the issues raised are not, strictly speaking, independent (given that they are all part of the same appeal), they may be independent in the sense that the resolution of one issue in favor of a particular party does not necessitate the resolution of other issues in favor of that same party. An appellant may triumph on one issue, while the appellee triumphs on another. In such cases, a court may affirm in part and reverse in part, thus "splitting the difference" between the litigants. In this sense, affirming in part and reversing in part represents a more nuanced outcome than is reflected in the simpler result of finding solely for the appellant or solely for the respondent.

Interestingly, however, most studies of appellate court outcomes routinely exclude from analysis cases where the outcome cannot be clearly classified as in favor of one party or the other or cases that have "ambiguous results." This is true for studies of the U. S. Courts of Appeals (Songer & Haire 1992; Songer & Sheehan 1992; Songer, Kuersten, et al. 2000), as well as for studies of state supreme courts (Wheeler et al. 1987; Parole 1999). Even when examining the U. S. Supreme Court, scholars typically categorize outcomes in a dichotomous fashion, as in favor of one party over another (Kearney & Sheehan 1992), even though, as one commentary has noted, "Supreme Court decisions do not come neatly packaged as victories or defeats for the parties" (Kearney & Merrill 2000: n.148). Why would an appellate panel choose to render a mixed outcome that falls somewhere between simple reversal and affirmance?

Here we examine this question in light of three theoretical perspectives. First, work by Galanter (1974) concerning "why the haves come out ahead" in court suggests that highly resourced litigants may experience greater success in court. …


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