Inter‐Court Dynamics and the Development of Legal Policy: Citation Patterns In the Decisions of the US Courts of Appeals (original) (raw)

The Impact of Supreme Court Signals and Circuit Effects on Responses to Precedent

Social Science Research Network, 2014

An extensive literature suggests that U.S. Supreme court justices are policy entrepreneurs who are strongly concerned with the impact of their decisions. Such a concern for the policy impact of their decisions raises a number of puzzles: 1) under what conditions do Court precedents have the broadest impact on the lower courts? 2) What motivates the circuits to respond differently to Supreme Court precedent? 3) What, if any, strategies does the Court employ to influence the responses of the courts below? These queries require scholars to examine the aggregate impact of the decisions of the Court. We provide a framework for aggregate lower court responses to Court precedent. We argue that given the finite ability of the Supreme Court to review the large number of lower court decisions, justices of the Court should primarily be interested in aggregate patterns of compliance. We posit that a signal by the Supreme Court in the form of its summary decisions and a number of circuit-level influences primarily drive lower court responses to Court precedent. The empirical results provide robust support for our account.

Case Citation Patterns in the U.S. Courts of Appeals and the Legal Academy

Justice System Journal

Is there a disconnect between the priorities that make cases important to the legal academy and American courts and judges? We use previously unexplored data on the decisions of federal appellate judges to cite cases compared to the decisions of legal academics to cite the same cases. One component of our approach is an investigation of case-level characteristics, and we focus on these and other factors that structure decisions to cite cases across three different contexts: within a federal circuit, by courts out of circuit, and in law review articles. Our results highlight a divergence between what prompts judges and those in the legal academy to cite cases, and, to our knowledge, this is the first study to compare the drivers of court citation with those of law review citation.

Activism, Attitudes, and the Citation of Precedent in Supreme Court Opinions

Adherence to precedent may provide a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the precedent cited. Individual variation in citation practice thus appears mainly idiosyncratic. However, I do uncover a strong interaction effect between ideology and activism, in which activist conservative justices write opinions with considerably less precedential centrality than other justices. This finding supports the narrative that the conservative legal framework entered a sea-change during the Burger and Rehnquist Court years.

Legal Constraint in the U.S. Courts of Appeals

SSRN Electronic Journal, 2013

Existing evidence of law constraining judicial behavior is subject to serious endogeneity concerns. Federal circuit courts offer an opportunity to gain leverage on this problem. A precedent is legally binding within its own circuit but only persuasive in other circuits. Legal constraint exists to the extent that use of binding precedents is less influenced by ideology than use of persuasive precedents. Focusing on search and seizure cases, I construct a choice set of published circuit cases from 1953 to 2010 that cite the Fourth Amendment. I model the use of precedent in cases from 1990 to 2010, using matching to ensure that binding and persuasive precedents are otherwise comparable. The less visible decision of which cases to cite shows no evidence of legal constraint, while there is consistent evidence that the more readily observable act of negatively treating a cited precedent is constrained by the legal doctrine of stare decisis. 1. Prior to 2007, some circuits prohibited citation to unpublished opinions (Gant 2005). 2. The author's extensive control over the content of the opinion suggests the importance of opinion assignment. The assignment is typically made by the most senior active (i.e., not retired) judge on the panel (Cheng 2008). 3. Following Hansford and Spriggs (2006), I refer to the case where a judge is making these decisions as a treatment case to distinguish it from a precedent.

The Value of Precedent: Appellate Briefs and Judicial Opinions in the U.S. Courts of Appeals

Justice System Journal, 2013

This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in the court's adoption of a party's use of a precedent. At times, ideological congruence between the circuit panel and the litigant increases the likelihood that the court's opinion will use a precedent in the same way as presented by the litigants. Concerning attorney experience, when their clients ultimately win the case, attorneys with no experience before the circuit are less likely to see the court use litigant-cited precedents in a similar way to the party brief. Even when their clients lose, experienced attorneys are more likely to see the court's opinion address the precedents the attorneys have raised positively. This suggests that attorney experience has some influence in sha...

The Impact of Supreme Court Precedent in a Judicial Hierarchy

2016

My dissertation explores three core questions. First, how is information regarding the preferences of judicial actors communicated within the American federal judiciary? Second, can U.S. Supreme Court justices meaningfully signal their policy preferences, vis-á-vis their decisions, to judges on the U.S. Courts of Appeals? Finally, what impact do such signals have on the propensity of lower courts judges to follow the precedents of the Supreme Court? The primary objective of this project is to identify the conditions that either increase or decrease the likelihood that judges on the courts of appeals comply with the precedents of the Supreme Court. I develop a theory in which information regarding the preferences of judicial actors flows dynamically within the courts. Specifically, I theorize that key Supreme Court signals and circuitlevel influences, together, drive circuit court attentiveness to precedents. Lower court application of the Supreme Court’s decisions, in turn, communic...

Rachael K. Hinkle, Academia.edu, "Legal Constraint in the US Courts of Appeals" (originally published The University of Chicago Press "the jouranl of politics," Volume 77, Number 3 July 2015)

Existing evidence of law constraining judicial behavior is subject to serious endogeneity concerns. Federal circuit courts offer an opportunity to gain leverage on this problem. A precedent is legally binding within its own circuit but only persuasive in other circuits. Legal constraint exists to the extent that use of binding precedents is less influenced by ideology than use of persuasive precedents. Focusing on search and seizure cases, I construct a choice set of published circuit cases from 1953 to 2010 that cite the Fourth Amendment. I model the use of precedent in cases from 1990 to 2010, using matching to ensure that binding and persuasive precedents are otherwise comparable. The less visible decision of which cases to cite shows no evidence of legal constraint, while there is consistent evidence that the more readily observable act of negatively treating a cited precedent is constrained by the legal doctrine of stare decisis.

Judicial influence: A citation analysis of federal courts of appeals judges

The Journal of Legal …, 1998

We thank Richard Craswell for pointing out the advertising role of self citations. 7 Since again, there is little inter-circuit precedential effect. Reputation 67 (1990) The public goods aspect means that differences in citations are better as an ordinal rather than cardinal measure of influence-i.e., if B receives 5 times as many citations as A, B ranks higher in influence but not necessarily five times more than A.

Patterns of Judicial Influence: Tracking Regulatory Takings Policy in the Lower Federal Courts

Annual Meeting of the American Political Science Association, September, 2005

The CITE-IT project employs information technologies in innovative ways to investigate the development and dissemination of precedent in the American legal system, based on a study of the issue of “regulatory takings.” This manuscript describes the initial phases of this multidisciplinary project, specifically the methodologies we have developed to identify the corpus on which the study itself will build–all federal-level regulatory takings decisions following the 1978 Penn Central Supreme Court decision. While a ...