In
Panel Effects, Whistleblowing Theory, and
the Role of Legal Doctrine, Derek Linkous and Professor Emerson
Tiller argue that Kim erroneously rejects the Whistleblowing Theory
(WT) of circuit panel decisionmaking—a theory emphasizing the role
of legal doctrine in constraining ideological decisionmaking by a panel
majority. In their response, Linkous and Tiller show how ignoring the
strategic and deliberative roles of legal doctrine call into question
the explanatory power of Kim’s strategic alignment hypothesis. After
laying out the basic premises of WT and explaining WT’s application
to both strategic and deliberative models of panel effects, Linkous
and Tiller correct two assumptions that lead Kim to reject WT. From
there, they address how doctrinal disobedience can be measured empirically
by scholars when a legal doctrine (such as a standard) does not command
particular outcomes in every case—a concern that led Kim to reject
empirical work on WT. While Linkous and Tiller recognize that developing
a coding scheme for doctrine is hard work, they argue that failing to
even try prevents Kim from addressing a key piece of the panel effects
puzzle—the role of legal doctrine.
Volume 158 Issue 1 2010 Response