Most empirical judicial decisionmaking scholarship on federal circuit courts tries to exploit something close to quasi-random assignments to three-judge appellate panels. While attention typically focuses on judge votes, in a recent paper, Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts, Stuart Minor Benjamin (Duke) et al. instead focus on whether panel composition (partisanship) influences how judges rely on prior case law.
Drawing on a data set that includes "all published and unpublished federal appellate opinions in the Lexis database that were issued between 1974 and 2017," the authors find that circuit panel composition does influence which cases are relied upon and followed and that the influence is asymmetric. Specifically, they find that evidence of a partisan influence in this context is: 1) relatively recent; 2) most salient for circuit opinions written by 3-Democrat panels; and 3) more likely in relatively "high-profile" cases. An excerpted abstract follows.
"Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. … We find that partisanship does, in fact, structure whether earlier opinions are followed and that these partisan effects have grown over time—particularly within the subset of cases that we believe are most likely to be ideologically salient. Since legal doctrine is developed by building upon or diminishing past opinions, these results have important implications for our understanding of the development of the law."
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