Institutions and Legal Consistency in the U.S. Courts of Appeals Open Access

Strayhorn, Joshua Aaron (2013)

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Though judges face a professional obligation to decide cases according to pre-existing law, scholars of judicial politics have provided considerable evidence that they do not always do so, and instead often decide cases on the basis of their personal policy preferences. What factors explain whether or not judges follow the law? Prior research addressing the question of why independent judges defer to law is conflicted between legalist theories, which argue that judges hold strong internalized personal values that favor deference to law, and institutional theories, which argue that judges obey law because they are constrained by institutional arrangements and face potential consequences if they do not. In this project, I develop a theoretical framework for discriminating between these two accounts. I examine this question in the context of the U.S. Courts of Appeals, where the difficulties associated with consistently applying the law to every case are highly acute due to use of the three-judge panel system, where different, randomly selected groups of judges decide each case. Taking advantage of institutional diversity among the twelve U.S. Courts of Appeals, I assess whether the presence of institutions that provide more opportunities for peer-to-peer oversight of panel decisionmaking is associated with greater deference to law. Using data on the incidence of rehearings of panel decisions by a full court en banc, and on patterns of citation among Courts of Appeals panels, I provide evidence consistent with the institutional account and inconsistent with the legalist account.

Table of Contents

1 Introduction 1

2 Self-Policing on Collegial Courts 42 3 Better Oversight or Better Judging? Internal Reforms and En Banc Review 70 4 Institutions, Ideology, and Precedent 96 5 Institutions and Law 128

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