The notion that political ideology may influence judicial decisionmaking is today neither new nor particularly noteworthy. Political scientists and legal academics have long suspected as much, and even a cursory glance at Supreme Court decisions over the years should suffice to convince even the most ardent of skeptics. But while the idea may not be new, empirical evidence of such partisanship has only emerged in recent years. Professors Tom Miles and Cass Sunstein, for instance, have studied a phenomenon that has come to be known as
panel effects—briefly, that the political ideology of the judges who compose an appellate panel influences the outcome of the decision. In a new paper, presented at last week's Public Law & Legal Theory Workshop, Professors Matthew Spitzer and Eric Talley expand upon this literature. In particular, they propose a general model that seeks to understand the panel effects phenom as a result of strategic information acquisition by individual panel members.
Those who enjoy sifting through mathematical models—and who doesn't?—might want to take a look at the paper (which is here). But for the lazy or insouciant, a description of the model will have to suffice. Put briefly, the argument advanced by Professors Spitzer and Talley is as follows: in mixed panels (that is, those composed of both
Democrats), the member in the minority will have incentives to invest in acquisition of additional information about the case in hopes of swaying the middle voter whereas she would not have had such incentives were the panel composed of members of only one political persuasion. In other words, when the panel is split 2–1 in favor of Republicans, for example, the Democratic member will be more inclined to
dig into the case law in hopes of convincing the more centrist Republican on the panel to switch sides. These incentives, argue the professors, might explain the panel effects observed by Miles and Sunstein, among others.
The faculty, though generally receptive to the argument, nevertheless had many questions.
What if search costs are really low? asked one faculty member; then, everyone on the panel would have incentives to search. That is true, replied Professor Talley, but search costs also reflect the opportunity costs associated with working on other cases, hearing more cases, foregoing other productive activities, bypassing leisure, and the like. While there is no easy way to measure such costs directly, they are likely greater than zero.
Could this theory explain why we only observe panel effects in some bodies of law? wondered another faculty member. The idea in this case would be that panel effects would only occur in situations where ideology was likely to influence the decision and there was some set of discoverable information that could change judges' minds.
What about amici? inquired a third professor. The answer: When they are filed, amicus briefs would provide yet another source of information for the minority member on a mixed panel. The minority member, of course, would still have to read and digest them, which is a process that is similar to the one studied in the paper.
Questions aside, a model based on information acquisition has some intuitive appeal. And if true, it would almost certainly have implications for judicial decisionmaking. This account, however, joins a number of competing theories that seek to explain panel effects. More data and empirical analysis will tell which theory works best.