For people interested in judicial decision-making, one of the most interesting findings in the last decade was the evidence that judges on panels do not make decisions independent of one another. In fact, the political ideology of co-panelists has a strong connection to how an individual judge will vote in many cases. These “panel effects” are now well-known among scholars who are not regular readers of empirical work regarding the courts. However, the details, magnitude, and explanation for these panel effects are still disputed and ambiguous.
The so-called “whistleblower” panel effect occurs when a judge wants to draw attention to the actions of co-panelists that might be acting in an ideological extreme manner. In contrast, strategic incentives often point in a different direction because dissents rarely serve any function at the federal appellate level when en banc panels are infrequent and Supreme Court review even less likely. There are also strong incentives toward consensus among judges in the same circuits because of the limited value of dissents and the upsides to collegiality among judges that will serve on panels hundreds of times together. To these theories of panel decision-making, I wanted to share one of my recent findings. Read More