Litigation and Settlement in the Federal Appellate Courts: Impact of Panel Selection Procedures on Ideologically Divided Courts

Abstract

This article compares the D.C. Circuit practice of announcing the composition of its panels before the parties have prepared their briefs with that of the remaining federal circuit courts, which announce their panels only after the filing of the briefs. The D.C. Circuit appears to have believed that its practice would reduce the court's adjudicatory burden as a result of the perception by litigants that D.C. Circuit judges vote in an ideological manner. This article shows that the D.C. Circuit practice gives rise to certain litigation‐reducing and settlement‐inducing incentives, but that it gives rise to countervailing incentives as well. The practice also has the effect of understating the court's ideological divisions. The analysis helps explain the incentives for litigation and settlement generated in other situations in which the identity of the adjudicator is thought to have an effect on the outcome of the case. It also provides an explanation unrelated to the existence of asymmetric information for settlements that are entered into after litigation has commenced.