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Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals
... 1719-1720). Cross and Tiller (1998) similarly found that "divided" panels (combining both Democratic and Republican appointees) behaved more moderately than "unified" panels (consisting of judges from the same political party.) They concluded that this moderation was due to strategic behavior by judges in the panel minority; the threat of a dissent could discourage the majority from taking an extreme position. ...
Because judges are expected to decide cases through the impartial application of existing law, they are often reluctant to admit that they must make law in hard cases. Many judges claim that such hard cases are rare, constituting roughly 10 percent of cases. In stark contrast, economic models of the selection of disputes for litigation predict that easy cases will settle, so that only hard cases would remain in trial and appellate courts. Empirical indicators, such as dissent rates or voting differences between Democratic and Republican appointees, have yielded muddled conclusions about the proportion of easy and hard cases in appellate courts. In fact, none of these crude statistics relate directly to the proportion of easy cases. This article develops a new approach for empirically analyzing the proportion of easy cases. Although the easiness and hardness of cases are subjective, it is possible to estimate feasible combinations of the proportion of hard cases and clear errors. This approach relies only on the basic premise that reasonable judges should not disagree in easy cases. The article then illustrates this approach using two datasets of appeals. An analysis of asylum appeals in the 9th Circuit finds widespread disagreement, implying high proportions of hard cases, clear errors, or both. By contrast, voting data from labor and environmental cases in the D.C. Circuit is consistent with the claim that 90 percent of cases are easy and 1 percent of decisions are clear errors.
This paper is a discussion of whether single‐member judicial panels are an effective way of accelerating the delivery of criminal justice. We use a reform which introduced single‐member courts in Greece, where delays in court proceedings are common according to the European Justice Scoreboard and the European Court of Human Rights. We use a novel dataset of 1463 drug trafficking cases tried between June 2012 and January 2014. As our measure of efficiency we use the time to issue a decision, and we find that single‐member panels are as efficient as three‐member ones. We take advantage of a feature of the reform to control for several confounding factors and support a causal interpretation of our findings. We complement our analysis with a survey of 142 judges to guide our interpretation of the results.
Increasing demographic diversity is undoubtedly important and can aid in debiasing decision makers. Yet, the promises of demographic diversity are not always realized due to social integration problems. We consider why and for whom differences combined with homogeneity make a difference for groups in terms of integratively complex thinking and ideological decision making. Although research has shown that decision makers often rely on political biases, that work has not addressed when and why decision-making groups are able to overcome these biases—a pervasive concern in today’s politically polarized social milieu. Drawing on the common in-group identity model and research on integrative complexity, we theorize that demographic diversity ultimately yields less ideological decision making because it prompts integrative complexity; however, demographic diversity only accrues this benefit in the presence of ideological homogeneity. We also reason that the relationship between integrative complexity and reduced ideological decision making emerges for more conservative (versus more liberal) groups. We find support for our expectations using a natural experiment of judges on the U.S. Courts of Appeals. Supplemental analyses indicate that working within a demographically diverse and ideologically homogeneous group also positively predicts integrative complexity in future decision-making groups. Finally, we find that demographic and ideological diversity can substitute for one another, but no additional integrative complexity benefits accrue when both are present. We discuss implications of this research in light of the ongoing conversation about the value of diversity and today’s polarized political climate.
Supplemental Material: The online appendix is available at https://doi.org/10.1287/orsc.2022.1647 .
At the center of contentious debates concerning U.S. asylum policy are immigration judges, bureaucrats who decide life and death cases on a daily basis. Congress, the executive and the courts compete for influence over these key actors — administrative judges distinct from those examined in much of the bureaucratic control literature. They are hired, fired, promoted or demoted by executive officials; face congressional oversight; and must follow circuit law. We argue that, because of the fear of reversal, immigration judges will look most to the courts in the decision-making process. Our results support our theory. Examining over 900,000 immigration judges’ decisions, we find that, although IJs are influenced by a fear of pushback from the elected branches, the impact is conditional on circuit preferences. Our findings inform scholarly understanding of judicial behavior and bureaucratic accountability, and support the pursuit of judicial independence and due process in immigration courts.
How does the selection of judges influence the work they do in important constitutional courts? Does mixed judicial selection, which allows more players to choose judges, result in a court that is more independent and one that can check powerful executives and legislators? Existing literature on constitutional courts tends to focus on how judicial behaviour is motivated by judges' political preferences. Lydia Brashear Tiede argues for a new approach, showing that, under mixed selection, institutions choose different types of judges who represent different approaches to constitutional adjudication and thus have different propensities for striking down laws. Using empirical evidence from the constitutional courts of Chile and Colombia, this book develops a framework for understanding the factors, external and internal to courts, which lead individual judges, as well as the courts in which they work, to veto a law.
Scholars of law, economics, and political science argue that collegiality matters. Considerable panel effects exist across jurisdictions, and judges compose panels strategically. In China, millions of cases are decided by collegial panels every year; however, little attention has been paid to the issue of collegiality. We offer one of the first empirical inquiries into collegial panels in China. Specifically, when and why do judges engage in collegiality? How does the presiding judge compose a judicial panel? What is the panel effect? Based on 23,564 cases decided by a local court in Beijing, China, from 2015 to 2017, we build a network of judges' collegial behaviors and examine the judges' strategy for panel composition and its potential impact. We argue for an external mechanism of panel effects and provide a strategic account of coalition‐building in a vulnerable environment. For mundane cases, Chinese judges tend to compose panels with junior judges. To some extent, such panels are their comfort zone. When facing complex cases, they tend to step out of their comfort zone and form panels with more capable judges. When doing so, they are also more inclined to make tough decisions, such as ruling against the government in administrative litigation cases and repeated players in civil cases, among others. The study sheds light on judicial politics in China and has the potential to expand our understanding of collective judicial decision‐making in transitional societies.
The past decade has witnessed a worldwide explosion of work aimed at illuminating judicial-behavior: the choices judges make and the consequences of their choices. We focus on strategic accounts of judicial-behavior. As in other approaches to judging, preferences and institutions play a central role but strategic accounts are unique in one important respect: They draw attention to the interdependent - i.e., the strategic - nature of judicial decisions. On strategic accounts, judges do not make decisions in a vacuum, but rather attend to the preferences and likely actions of other actors, including their colleagues, superiors, politicians, and the public. We survey the major methodological approaches for conducting strategic analysis and consider how scholars have used them to provide insight into the effect of internal and external actors on the judges' choices. As far as these studies have traveled in illuminating judicial-behavior, many opportunities for forward movement remain. We flag four in the conclusion.
Os economistas fizeram grandes progressos na compreensão dos incentivos e do comportamento dos agentes que operam fora dos mercados econômicos tradicionais, incluindo eleitores, legisladores e burocratas. Os incentivos e o comportamento dos juízes, no entanto, permanecem em grande parte incertos. Os juízes atuam como executores neutros de decisões substantivas tomadas por terceiros? Os juízes são legisladores “comuns”, que dão sequência a quaisquer resultados favoráveis, sem qualquer consideração especial pela lei como tal? Estudos recentes começaram a explorar concepções com mais nuances de como o direito, as evidências e as preferências judiciais podem interagir para influenciar as decisões judiciais. Este trabalho desenvolve uma perspectiva de julgamento que pode ser entendida como a manifestação moderna do Realismo Jurídico Americano, um movimento jurisprudencial de advogados, juízes e professores de direito que floresceu no início do século XX. O objetivo deste ensaio é introduzir, de forma simplificada, o relato realista de decisões judiciais; contrastar esta visão com teorias alternativas sobre direito e julgamento; e esboçar como uma integração mais explícita dos insights conceituais dos Realistas sobre direito e comportamento judicial poderia enriquecer o trabalho econômico em rápida expansão neste campo.
This article explores the phenomenon of judicial dissents at the ICC. The main subject is the process of collective decision-making and judicial deliberations in cases where members of a particular ICC chamber cannot reach a consensus on factual, substantive or procedural issues and render a unanimous decision. The article examines why and when international criminal judges dissent according to the views expressed by ICC judges. Drawing heavily on field research in The Hague, the article presents a qualitative analysis of the ICC judges’ perceptions and experiences of using dissenting opinions at the Court. Empirical findings derived from interviewing ICC judges support the hypothesis that international criminal judges’ personality, that is, their character differences (such as self-discipline and other work habits), their previous career experience, and their field of expertise determine their likelihood of using judicial dissents. In case of disagreement within an ICC Chamber, judges with criminal law backgrounds who previously worked as professional judges are more likely to append their dissent to a majority ruling with which they do not agree than international judges, diplomats, and professors with public international law expertise who are more willing to discuss and negotiate in order for the Court to speak with one voice.
Human dignity, plural democracy and minority rights are the backbones of the constitutional democracy in Slovenia. Constitutional democracy aims in theory to protect the rights of minority social groups against the interests of the majority. It limits the power of the majority by insisting on the protection of constitutional values and principles. The Slovenian constitutional democracy was founded on the values of human dignity, freedom, equality, solidarity and pluralism. The Constitutional Court of Slovenia has in the past decades delivered several seminal decisions relating to the values of pluralism, tolerance and broadmindedness. However, not much if anything has been published as to the reasons and judicial ideology behind those judgements. What triggers constitutional judges to protect in some cases the rights of the minority and in others to safeguard the interests of the majority? This contribution is based on the research project titled “Ideology in the Courts: the Influence of Judges’ Worldviews on their Decisions”. The aim is to empirically measure the presence of three-fold judicial ideology at the Constitutional Court of Slovenia. The research group has in the course of the project developed a three-fold methodological and theoretical model aimed at measuring judicial ideology. In doing so, the research group has empirically measured decisions and separate opinions from selected periods of the first three mandates of the Slovenian Constitutional Court. As a result, the objective of this contribution is to present the results of measuring ideological profiles of the Court and its individual judges relating to the social dimension of judicial ideology. The empirical results illustrate that all three mandates of the Constitutional Court attempted, in their decision-making concerning the social dimension of judicial ideology, to protect the values of pluralism, tolerance and broadmindedness as the pillars of any constitutional democracy.
This paper analyzes the extent of agency discretion under different assumptions concerning judicial review: a) discrete judicial decision making; b) multi-member courts; c) decision costs at the Courts; d) multi-layer judiciary. The main results of this paper are: a) discrete judicial decision making and decision making costs at the Court generate agency discretion; b) Agency discretion is reduced, however, by introducing further levels of judicial review; c) Multi-member Courts do not seem to generate important implications for agency discretion.
Chevron and Its Afrermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND.L.REV Pierce has subsequently suggested that the effect of Chevron has dissipated somewhat over time
- Richard J Pierce
Richard J. Pierce, Jr., Chevron and Its Afrermath: Judicial Review of Agency Interpretations of
Statutory Provisions, 41 VAND.L.REV. 301, 302 (1988). Pierce has subsequently suggested that the effect
of Chevron has dissipated somewhat over time. See Richard J. Pierce, Jr., Legislative Reform of Judicial
Review of Agency Actions, 44 DUKEL.J. 11 10, 11 12 (1995) [hereinafter Pierce, Legislative Reform].
supra note 42, at 1123. Pierce focused this criticism on the Supreme Court's, rather than the appellate courts', application of Chevron. 45. A third study considered the Supreme Court's use of its Chevron precedent
- Legislative Pierce
- Reform
Pierce, Legislative Reform, supra note 42, at 1123. Pierce focused this criticism on the Supreme
Court's, rather than the appellate courts', application of Chevron.
45. A third study considered the Supreme Court's use of its Chevron precedent. See Menill, supra note
40.