We construct a database of federal appellate cases involving religious liberties decided between 2006 and 2015, expanding and improving an existing database covering up to 2005. The data are used to investigate the role of religion in judicial decision making. We find that Jewish judges are significantly more likely than their non‐Jewish colleagues to favor claimants in religious liberties cases, but we find no significant effects for other minority religions. Our findings confirm previous findings in the literature, but we go a number of steps further than existing studies in uncovering the sources of Jewish judges’ influence. We conclude that the effect of Jewish judges comes through their increased concern for the separation of church and state—not through their heightened solicitude for the interests of religious minorities in practicing their religion or through preferential treatment of Jewish claimants. Further, our analysis of cases not involving religion shows that the pro‐claimant effect of Jewish judges is attributable not to a general liberal attitude but to a particular secular concern for the separation of church and state. Finally, we are the first researchers to go beyond individual effects and investigate the panel effects of judges’ religious affiliation. Our findings in this regard have suggestive implications for identifying the mechanism of panel effects.
A fundamental but understudied procedural institution of American law is that appellate courts defer more to trial courts’ findings of fact than to their conclusions of law. I formally model this procedural institution, showing how trial courts use factfinding to achieve their preferred outcome and how appellate courts craft rules in anticipation of trial courts’ strategic factfinding. Trial courts do not always report facts truthfully. Appellate courts do not commit to consistent rules, but consistent rules may emerge in equilibrium, creating a misleading appearance of judicial commitment to legal consistency. Preference divergence between trial and appellate courts has a nonmonotonic effect on factfinding. Fact deference can explain suboptimal rulemaking and reversals even when there is no uncertainty about the likelihood of review or the reviewing court’s ideal rule. The model is also useful in understanding why the institution of fact deference persists. Applications to policing and other domains are discussed. (JEL K40, K41, D02)
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