Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects

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Recent
studies have established that the decisions of a federal court of appeals
judge are influenced not only by the preferences of the judge, but also
by the preferences of her panel colleagues. Although the existence
of these “panel effects” is well documented, the reasons that they
occur are less well understood. Scholars have proposed a number
of competing theories to explain panel effects, but none has been established
empirically. In Deliberation and Strategy on the United States
Courts of Appeals: An Empirical Exploration of Panel Effects
, Professor
Pauline Kim reports an empirical test of two competing explanations
of panel effects—one emphasizing deliberation internal to a circuit
panel, the other hypothesizing strategic behavior on the part of circuit
judges. The latter explanation posits that court of appeals judges
act strategically in light of the expected actions of others and that,
therefore, panel effects should depend upon how the preferences of the
Supreme Court or the circuit en banc are aligned relative to those of
the panel members. Analyzing votes in Title VII sex discrimination
cases, she finds no support for the theory that panel effects are caused
by strategic behavior aimed at inducing or avoiding Supreme Court review. On the other hand, the findings strongly suggest that panel effects
are influenced by circuit preferences. Both minority and majority
judges on ideologically mixed panels differ in their voting behavior
depending upon how the preferences of the circuit as a whole are aligned
relative to the panel members. This study provides evidence that
panel effects do not result from a dynamic wholly internal to the three
judges hearing a case, but are influenced by the environment in the
circuit as a whole as well.

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