Academic journal article Law & Society Review

Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

Academic journal article Law & Society Review

Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

Article excerpt

Research has documented evidence of judges pursuing a variety of goals, most notably shaping legal policy to conform to their own ideological preferences. A broad swath of studies examine whether judges pursue their goals strategically by taking the anticipated actions of other relevant actors into account. One particular type of strategic behavior is when lower courts take steps to avoid reversal on appeal. The quest for empirical evidence of this type of strategic judicial behavior has produced mixed results (Bowie and Songer 2009; Hettinger, Lindquist, and Martinek 2004; Van Winkle 1997). I build on this line of work by examining how federal circuit judges use precedent in their opinions, specifically evaluating whether these micro-level decisions reveal indications that such judges strategically balance acting ideologically with avoiding reversal by the full circuit sitting en banc.

Three-judge panels in the U.S. Courts of Appeals resolve the vast majority of circuit cases. These panels face potential oversight from two sources, the U.S. Supreme Court and their own circuit rehearing a case in an en banc proceeding (Boyd and Spriggs 2009; Kim 2006). This article focuses on the oftenoverlooked relationship between panels and their circuit. Strategic action is particularly feasible when an actor faces potential review by well-known colleagues (Bowie and Songer 2009; Giles et al. 2007). This detailed knowledge of potential reviewers may facilitate strategic behavior that is more subtle than filing a dissenting opinion. Therefore, I look to opinion content for manifestations of strategy by exploring whether panels' decisions about how to use precedent are influenced by the ideological composition of the full circuit. A strategic panel may strive to craft an opinion the full circuit would be less likely to reverse by taking the circuit median's ideology into account when discussing existing caselaw.

This article empirically tests for evidence of strategic anticipation of en banc review using an original dataset containing 13,334 search and seizure opinions published1 by federal circuit courts from 1953 to 2010. Using this list of possible cases a judge might cite (precedents), I analyze how panels cite and treat binding circuit precedents in the opinions from 1990 to 2010. The choice set for possible citation is constructed using precedents from within the same circuit as the opinion, as those are legally binding under the doctrine of stare decisis (Barnett 2002). Starting with this extensive list of possible cases a judge might cite, I import a well-established measure of document similarity from the field of machine learning to construct a narrower choice set of cases a panel might more realistically consider. This cuttingedge technique of using an automated computational summary of the similarity between an opinion and a precedent also provides the substantial advantage of being able to control for opinion-precedent similarity in the empirical analysis.

The outcome of a case determines who wins, but the significance for future legal policy usually lies in the opinion rather than the judgment. Central to any opinion is which precedents are cited and whether their scope is limited (negative treatment) or expanded (positive treatment). If panel judges select and use precedent strategically with respect to the possibility of en banc review, these decisions should reflect the extent to which the full circuit is aligned with a particular precedent. The results provide evidence that the ideological preferences of the entire circuit do influence citation and treatment decisions. Panels are less likely to negatively treat precedents with which the circuit is more closely aligned. Circuit preferences also have an effect on citation itself, but only when the panel is at least moderately aligned with a precedent. Moreover, the panel's own ideology is only a significant predictor of citation when the full circuit is favorably disposed toward a particular precedent. …

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