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


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This issue contains responses to Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects by Pauline T. Kim.

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.

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.

In Psychology, Strategy, and Behavioral Equivalence, Professor Stefanie Lindquist and Dr. Wendy Martinek recognize that Kim has created an innovative empirical model to test for circuit and Supreme Court effects on panel decisionmaking at the United States Courts of Appeals. They recommend caution, however, in interpreting these results as evidence of strategic behavior since alternative explanations—including the effects of deliberation and circuit court precedent—could also account for the findings presented. Indeed, there is no basis for favoring a strategic theory over a deliberative one. Behavioral equivalence is, unfortunately, often a confounding problem in studies of strategic decision making on appellate courts. Lindquist and Martinek maintain their belief from earlier studies that while strategic behavior may take place on some courts, under some conditions, the strongest influence on federal appellate courts are from judges seeking consensus to promote the efficient administration of justice and to minimize error.

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