Multimember Courts Research Articles

Inconsistency on Multimember Courts

Inconsistency on Multimember Courts

Collective Choice and Dissenting Opinions in Multimember Courts - Elements for Assessing Judicial Reasoning in Courts of Constitutional Decision Making in South America

Collective Choice and Dissenting Opinions in Multimember Courts - Elements for Assessing Judicial Reasoning in Courts of Constitutional Decision Making in South America

Explaining legal inconsistency

Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could hurt courts’ policy making efficacy, so why do judges allow it to happen? I show judicially-created policy can become inconsistent when judges explain rules in more abstract terms than they decide cases. To do so, I expand standard case-space models of judicial decision making to account for relationships between specific facts and broader doctrinal dimensions. This model of judicial decision making as a process of multi-step reasoning reveals that preference aggregation in such a context can lead to inconsistent collegial rules. I also outline a class of preference configurations on collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have implications for several areas of inquiry in judicial politics such as models of principal-agent relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

Race, Context, and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases

This paper examines how the identities of judges on multimember courts interact with case context to influence judicial decision making. Specifically, I leverage variation in panel composition and defendant race to examine race-based panel effects in death penalty cases on the Courts of Appeals. Using a dataset that accounts for several characteristics of a defendant and his crime, I find that the assignment of a black judge to an otherwise all-nonblack panel substantially increases the probability that the panel will grant relief to a defendant on death row—but only in cases where the defendant is black. The size of the increase is substantively large: conditional on the defendant being black, a three-judge panel with a single African-American judge is about 23 percentage points more likely to grant relief than an all-nonblack panel. These results have important implications for assessing the role of racial diversity on the federal courts and contribute to the empirical literature on the application of the death penalty in the United States.

‘The Court, it is I’? Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory

Abstract:Collective decision-making is often taken as an ‘institutional fact’ when it comes to supreme and constitutional courts. In this article, we focus on the example of the Brazilian Supreme Court (Supremo Tribunal Federal, or STF) to argue that this feature should not be assumed from the outset, as it does not necessarily hold, across countries, for all relevant powers that courts may have. As this example illustrates, the assignment to individual Justices of three distinct powers, namely agenda setting, position taking, and decision making, can have profound effects on the legislative status quo outside the court, amounting in some circumstances to a form of individual judicial review. This expanded typology of court powers both points to an underexplored spectrum for comparing different courts and makes it necessary to discuss if and how particular distributions of such powers within multi-member courts are normatively justified. In the specific case of the STF, we argue that the specific combination of individual allocations of agenda setting and decision-making powers, which gives rise in practice to the possibility of individual judicial review, cannot be reconciled with basic tenets of constitutional theory.

Decisionmaking on Multimember Courts: The Assignment Power in the Circuits

Institutional rules of courts often draw status distinctions among members, assigning certain statuses to different judges (e.g., “chief judge,” “presiding judge”) and allocating particular powers on the basis of status. We investigate the influence of intra-court and intra-panel status distinctions on judicial behavior in the U.S. federal courts of appeals. We exploit cross-case variation in judicial status and cross-circuit differences in institutional procedures that relate status to particular powers. Analyzing cases published between 1993 and 2007, we find that presiding-judge status reduces the probability that a judge dissents by 16 percent. We find evidence suggesting that this effect operates entirely through the presiding judge’s power to assign the panel opinion, and that it is not a product of strategic voting by presiding judges seeking to retain opinion-assignment authority by siding with the majority. These results illustrate the importance to voting patterns of institutional rules governing judicial status and intra-panel powers.

Addressing ‘Loss of Identity’ in the Joint Judgment: Searching for ‘The Individual Judge’ in the Joint Judgments of the Mason Court

There has been a spate of recent articles by current, and former, judges in Australia debating the relative merits of joint and separate judgments.[footnote* See, eg, Justice Dyson Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205; Sir Anthony Mason, ‘Reflections on the High Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102; Peter Heerey, ‘The Judicial Herd: Seduced by Suave Glittering Phrases?’ (2013) 87 Australian Law Journal 460; Justice Stephen Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189; Justice Susan Kiefel, ‘The Individual Judge’ (2014) 88 Australian Law Journal 554. For a summary of the alternative views expressed in these offerings see Andrew Lynch, ‘Keep Your Distance: Independence, Individualism and Decision-Making on Multi Member Courts’ in Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia – Contemporary Challenges, Future Directions (Federation Press, 2016) 156.] One of the arguments against joint judgments is that they entail the loss of individual voice and due recognition for the development of the law.

The Votes of Other Judges

Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings.We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.

Race, Context and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases

I examine how the identities of judges on multimember courts interact with case context to influence judicial decision making. Specifically, I leverage variation in panel composition and defendant race to examine race-based panel effects in death penalty cases on the Courts of Appeals. Using a dataset that accounts for several characteristics of a defendant and his crime, I find that the random assignment of a black judge to an otherwise all-nonblack panel substantially increases the probability that the panel will grant relief to a defendant on death row -- but only in cases where the defendant is black. The size of the increase is substantially large: conditional on the defendant being black, a three-judge panel with a single African-American judge is about 25 percentage points more likely to grant relief than an all-nonblack panel. These results have important implications for assessing the role of diversity on the federal courts and contribute to the empirical literature on the application of the death penalty in the United States.

The Politics of Opinion Assignment and Authorship on the US Court of Appeals: Evidence from Sexual Harassment Cases

We evaluate opinion assignment and authorship on the US courts of appeals. We derive theoretical explanations and predictions for opinion assignment that are motivated by the courts of appeals’ distinct institutional setting. Using an original data set of sexual harassment cases, we test our predictions and find that female and more liberal judges are substantially more likely to write opinions in sexual harassment cases. We further find that this pattern appears to result not from policy-driven behavior by female and liberal assigners but from an institutional environment in which judges seek out opinions they wish to write. Judicial opinions are the vehicles of judicial policy, and thus these results have important implications for the relationship between legal rules and opinion assignment and for the study of diversity and representation on multimember courts.

When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court

When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court

Opinion Assignment and Control of the Law on the U.S. Courts of Appeals

We evaluate opinion assignment and opinion authorship on the U.S. Courts of Appeals. Based on the Courts of Appeals' distinct institutional setting, we derive theoretical explanations and predictions for opinion assignment on three-judge panels. Using an original dataset of sexual harassment cases, we test our predictions and find that women and more liberal judges are substantially more likely to write opinions in sexual harassment cases. We further find that this pattern appears to result not from policy-driven behavior by women and liberals assigners, but from an institutional environment in which judges seek out opinions they wish to write. Judicial opinions are the vehicles of judicial policy, and thus these results have important implications for the relationship between legal rules and opinion assignment and for the study of diversity and representation on multimember courts.

The Academic Study of Decision Making on Multimember Courts

The Academic Study of Decision Making on Multimember Courts

Left, Right, and Center: Strategic Information Acquisition and Diversity in Judicial Panels

Left, Right, and Center: Strategic Information Acquisition and Diversity in Judicial Panels Matthew Spitzer y & Eric Talley z March 24, 2011 Abstract In the last …fteen years, numerous studies of multi-member courts have documented a phenomenon popularly known as “panel e¤ects.”Two provocative …ndings from this literature are: (1) the inclusion of (non- pivotal) members from outside the dominant ideology on the panel pre- dicts higher reversal rates of administrative agencies that are “like minded” with the panel’ median voter; and (2) when mixed panels do not reverse, s they frequently issue unanimous decisions. The apparently moderating ef- fects of mixed panels both pose a challenge to conventional median voter theories and call into question the predictability and legitimacy of judicial review. Accordingly, many scholars have o¤ered their own explanation for panel e¤ects (including collegiality, dissent aversion, deliberation e¤ects, whistle-blowing, and others). In this paper, we propose a general model that (among other things) predicts panel e¤ects as a byproduct of strategic information acquisition. The kernel of our argument is that ideologically extreme, non-pivotal members of deliberative panels have incentives to engage in costly information production in cases where pivotal members would rationally choose not to do so. As a result, diverse panel compo- sitions can catalyze distinct forms of information production producing equilibrium panel e¤ects. Our informational account – if correct – has normative implications for the composition of judicial panels in particular and for deliberative groups more generally. (First Version: May 6, 2009; Submitted for Publication: Aug. 23, 2010). Thanks to Bernard Black, Charles Cameron, Steve Choi, Robert Cooter, John de Figueiredo, Rui de Figueiredo, Dan Farber, Joshua Gans, Jake Gersen, Prasad Krishnamurthy, Tracy Lewis, Justin McCrary, John Morgan, Anne Joseph O’ Connell, Kevin Quinn, Mark Ramseyer, Suzanne Scotchmer, Pablo Spiller, Matthew Stephenson, Cass Sunstein, Emerson Tiller, Abe Wickelgren, Jonathan Wiener, and seminar participants at the Americal Law and Economics Association meetings, Berkeley, Chicago, Northwestern, Melbourne Business School, Texas, Vanderbilt, and the Duke-North Carolina Triangle Law and Economics Conference for com- ments and discussions. We also thank two anonymous referees for constructive suggestions. Sam Houshower, Teddy Maghee, and Daniel Mitchell provided excellent research assistance on this project. All errors are ours. y University of Texas. Email: mspitzer@law.utexas.edu z University of California, Berkeley. Email: etalley@law.berkeley.edu.

When Bullets Penetrate Bullet-Proof Vests: Conformity of the Bullet-Proof Material to the Contract of Sale and Concurrent Remedies (a Note on the Judgment of the Multi-Member Court of First Instance of Athens 4505/2009)

The Vienna Convention of 1980 for the International Sale of Goods (the “Vienna Convention” or “CISG”) was entered into force in Greece on1.2.1999 by virtue of law no. 2532/1997 (Gov. Gazette A 227/11.11.1997) and has since then been applied and interpreted by fourteen Greek judgments. The judgment of the Multi-Member Court of First Instance of Athens 4505/2009 (“Judgment 4505/2009”) is, if not the most important, one of the most important cases. Its importance is based not only on the CISG legal issues on which it expressed an opinion, but also on the particularities (and complexities) of its facts (its original text exceeds 100 pages and is still unpublished in Greece). On this basis the author believes that the full understanding of the legal issues of Judgment 4505/2009 requires systematic and, to the extent possible, detailed presentation of its complicated facts. It is noted that Judgment 4505/2009 also deals with important legal issues relating to international jurisdiction and Greek domestic civil law. However, this note will only concentrate, with few exceptions, on legal issues relating to the CISG.

Playing Well with Others - But Still Winning: Chief Justice Roberts, Precedent, and the Possibilities of a Multi-Member Court

This Essay, written for the Constitutional Law Roundtable at the 2010 meeting of the Southeastern Association of Law Schools, considers the methods by which a justice inclined to weaken precedent may do so without explicitly overruling cases. Adding to the literature of “stealth overruling,” it considers examples of these methods from the first five years of the Roberts Court. It does not speculate that the Roberts Court, or Chief Justice Roberts himself, is any more inclined than past Courts or justices to overrule (by stealth or otherwise). However, it does suggest that Chief Justice Roberts has employed several methods of implicitly weakening precedents short of explicitly overruling them. These examples suggest that Chief Justice Roberts does know how to engage in stealth overruling when he wants to, and how to make those moves consistent with a formal commitment to judicial humility.

The Wisdom of Soft Judicial Power: Mr. Justice Powell Concurring

President Theodore Roosevelt was famous for remarking that one should talk softly and carry a big stick. Justice Powell did not need a big stick, garnering long-term acceptance of his views by writing soft-spoken concurrences that served to limit the reach of broadly framed majority and plurality opinions. This paper focuses on Powell's ability to influence the path of the law through arguably precedential concurrences as opposed to withholding his vote from the majority and then dissenting. We examine cases during the 1975-1981 Terms when his vote was the fifth vote necessary to form a majority and when his was but the sixth or seventh vote; in our data set, the Powell opinion often was taken by lower courts as stating the holding of the Court. Powell's preference for concurrence and his position as the swing vote during much of his tenure on the Court allowed him to have a significant impact on future courts and cases, and may serve as a salutary example for judges on multimember courts.

Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada

Over the past 25 years, the justices of the Supreme Court of Canada have not exhibited the divergent policy views along party lines that have been characteristic of the justices of the United States Supreme Court. This apparent lack of partisan polarization in Canada may at first give rise to smugness about the appointments process in Canada; after all, our process appears to have successfully sidestepped the politicization associated with the US nomination and confirmation system. However, before any claim that the Canadian appointments process is in fact superior can be made or defended, it is necessary to understand what these findings imply about the judicial decision-making process and quality of adjudication by our Court relative to the US Supreme Court. In this paper we argue that whether the relative nonpartisan nature of the Supreme Court in Canada is advantageous depends on a number of assumptions surrounding the nature of the appointments process, the characteristics of justices who are appointed in each system, and the decision-making processes used by the justices on each Court. This paper discusses the relationship between two potential determinants of a justice's votes: her personal policy preferences and the extent and nature of cooperation between justices on the Court at a given time. To set the context Part II briefly outlines the main findings of some recent empirical research on the judicial voting behaviour on the Supreme Court of Canada and compares it to similar empirical studies of the US Supreme Court. Part III then sets out a framework for analyzing the difference in voting patterns based on the extent to which a judge votes in accordance with her policy preferences and the extent to which the justices of a multi-member court can be characterized as cooperative. Part IV uses this framework to assess the different patterns of voting on the Canadian and US Supreme Courts and discusses the important normative tradeoff between deliberation (positive cooperation) and logrolling (negative cooperation). Finally, Part V briefly discusses the connection of this normative tradeoff to the appointments process, and identifies some additional considerations to guide future theoretical and empirical research.

Ideology, Collegiality, and the D.C. Circuit: A Reply to Chief Judge Harry T. Edwards

In an essay published in the October 1998 issue of the Virginia Law Review, Chief Judge Harry T. Edwards responds to my article analyzing the role of ideology in the D.C. Circuit's decisions concerning environmental regulation. It is somewhat sobering when one of the Nation's leading federal appellate judges criticizes one's work with great vehemence. Nonetheless, as this reply makes plain, Judge Edwards is simply wrong with respect to each of the numerous criticisms that he levels against my work. Not a single one of his arguments weakens in any way the force of my findings. The discussion proceeds as follows. Part I summarizes the principal claims made in my article. Part II responds to the six sets of objections (each of which contains many independent components) that Judge Edwards levels against my methodology. Part III takes issue with arguments that Judge Edwards advances in support of his account of how the D.C. Circuit decides cases. Part IV explains why Judge Edwards' views concerning the role of empirical studies of the judicial function are misguided. This essay thus unfolds on two levels. First, it provides a methodical and detailed response to each of Judge Edwards' criticisms of my work. This response ought to be of interest not only to individuals who are trying to evaluate the validity of these criticisms but also to future empirical researchers, who might benefit from the discussion of the various methodological choices. Second, the essay is intended to cast some further light on the processes of adjudication, particularly in multimember courts, and on the use of empirical methods to study the judicial function. These issues are central to the work of a broader audience.

Sincere and Strategic Voting Norms on Multimember Courts

In appellate adjudication, decisions are issued by a multimember court as a collective entity, not by individual judges. Yet the mechanisms by which individual votes are transformed into a collective judgment have rarely been explored by legal scholars. Political scientists have begun to model individual judicial behavior, exploring the ways in which rational judges on collegial courts might advance their preferred outcomes. The models suggest that, in certain contexts, a rational judge will deviate from her personal sincere views about the law in order to secure the most desirable collective decision possible, given the views held by the other relevant actors (judges or other governmental actors) who share input into that final collective decision. The political science literature is strictly positive, not normative; it tells us nothing about the norms that ought to guide judges as they operate within the confines of a multimember court. Certain forms of strategic behavior, such as insincere voting to forge a majority coalition, appear to be almost universally accepted and routinely practiced. Other forms of strategic behavior, such as stark vote-trading across unrelated cases, appear to be almost universally condemned. Still other forms, such as misrepresenting one's position in a case in order to better advance one's preferred outcome in that same case, fall into a much grayer area. My primary goal in this Article is to explore this intuitive normative differentiation between various forms and contexts of strategic voting. We may all agree, for example, that vote-trading is improper. But why: because it has pernicious effects? because it employs impermissible means of decisonmaking? because it strives for impermissible goals? And once we identify the salient conceptualization(s) of adjudication that make this practice improper, what implications do those conceptualizations have for other forms of strategic voting, or even more conventional adjudicatory practices? At bottom, what are and should be the fundamental rules of the game governing collegial adjudication?