Sound the Alarm? Judicial Decisions Regarding Publication and Dissent

Abstract

Judges sitting on three-judge panels in the U.S. Courts of Appeals make decisions under the shadow of potential review by supervising courts, the full circuit sitting en banc and the Supreme Court. Review is more likely for published decisions, particularly when a dissent is present. Unpublished decisions do not have binding precedential status. These factors create the potential for judges to be strategic in deciding whether to publish a decision or write a dissent. We develop a formal model of decision aggregation that takes the possibility of negotiating a tradeoff between the ideological location of a rule and its precedential value into account. Implications of our model are tested empirically using an original data set of search and seizure cases. Our model and results indicate that preferences within the panel and judicial hierarchy coupled with discretionary review influence judges’ decisions regarding publication and dissent, and that these choices have important consequences.

The Problem of Data Bias in the Pool of Published U.S. Appellate Court Opinions

“…Grunwald () examines the partisan makeup of appellate court panels in published and unpublished cases in the Third Circuit during a five‐year span and finds evidence of strategic publication. Hazelton et al () develop a formal model in which publication and the ideological location of a rule are the results of bargaining on a panel, and empirically test the model on data from search and seizure cases in the federal appellate courts, finding that the ideological characteristics of panels and supervising courts influenced publication behavior. Keele et al () and Law () examine subsets of cases concerning the U.S. Forest Service and asylum law (respectively) and find that there are systematic differences in the influence of ideological variables on outcomes in published versus unpublished opinions.…”

“…In the face of resource scarcity, rational panels will allocate their resources in ways that will generate the greatest return. Depending on the objective function of the judges, the benefit of publishing could include clarifying the law for future litigants, maximizing public policy impact, or satisfying ideological preferences (Choi & Gulati ; Grunwald ); costs could include resource (time and effort) costs (Epstein & Knight ; Posner ) as well as potential intra‐panel conflict (Revesz ) and increased scrutiny by higher courts (Hazelton et al ) or outside observers.…”

“…Hazelton et al () provide a well‐fleshed‐out theory of strategic publication in which judges bargain over both outcomes and publication decisions. In that model, majorities on ideologically split panels bargain with dissatisfied minorities to avoid a dissent.…”

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

“…Although dissenting opinions at the Supreme Court have become more common (Corley et al 2013), unanimity is a powerful norm at the U.S. Courts of Appeals (Cross 2007;Kim 2009). Dissenters are argued to be whistleblowers in the federal judicial hierarchy, signaling potential deviation from Supreme Court or circuit precedent or procedure (Beim et al 2014a;Blackstone & Collins 2014;Cross & Tiller 1998;Hazelton et al 2016). The presence of a dissent has long been thought to be a factor in decisions on certiorari (Tanenhaus et al 1963;Ulmer et al 1972).…”

Of Whites and men: How gender and race impact authorship of published and unpublished opinions in the US courts of appeals

“…The two types of opinions also carry different risks. Publication raises the possibility, although rare, that an opinion may be reversed either by the Supreme Court or by the full circuit sitting en banc (Hazelton et al, 2016;Law, 2005;Wasby, 2001). Although review of an unpublished opinion is possible, scarce resources are almost never expended to review an opinion that only resolves a single dispute (Hazelton et al, 2016).…”