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1 J.L. & Empirical Analysis 2 (2024)

handle is hein.journals/jnlolwadem1 and id is 1 raw text is: Original Research Article Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts Journal of Law and Empirical Analysis 2024, Vol. 1(1) 2-14 @ The Author(s) 2024 Article reuse guidelines: sagepubxcom/jour-nals-perrniissions DOI: 10. 1 177/2755323X241240384 journals.sagepub.com/homellex SSage Stuart Minor Benjamin , ByungKoo Kim2, and Kevin M. Quinn Abstract Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard's treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what one would expect from a panel with homogeneous partisanship? Finally, does the size of these potential partisan effects change over time in a way that would be consistentwith partisan polarization on the courts? We find that partisanship does, in fact, structure whether earlier opinions are followed and that these partisan effects have grown over time-particularly within the subset of cases that we believe are most likely to be ideologically salient. Since legal doctrine is developed by building upon or diminishing past opinions, these results have important implications for our understanding of the development of the law. Keywords judicial behavior, federal courts of appeals, panel effects, judicial citations, partisan polarization Introduction Most quantitative empirical research on the behavior of U.S. court of appeals judges focuses on the final votes on the merits cast by such judges. Such decisions are clearly consequential, both for the parties involved in the appeal and for the development of the law. But there is more to judicial behavior than deciding who prevails in a dispute. In the American common law system, the reasoning in judicial opinions serves to guide future judges in their decisions. A key element of that reasoning is how earlier cases are or are not relied upon. The precedential vitality of a given majority opinion is either amplified or diminished through later judges' decisions either to rely on or to reject reliance on that opinion when deciding a current case. The nature of precedent is that opinions that later courts treat as con- trolling thereby help to determine legal doctrine, and opinions that are regularly criticized, questioned, or limited do not. Judges develop the precedential authority of opinions by their decisions to rely on and follow those opinions. And, in so doing, they reveal information about their preferences. Moving back to studies of judicial behavior that focus on merits votes, much of this literature finds that ideology and/or partisanship (both of which are typically proxied by the party of the appointing president) tend to structure the voting behavior of judges (see, inter alia, Cross & Tiller, 1998; Revesz, 19971; Rowland & Carp, 1996; Segal & Spaeth, 2002; Sunstein et al., 2006). Some of the best of this work exploits the fact that within the U.S. courts of appeals judges are, to a 'School of Law, Duke University, Durham, NC, USA 2KDI School of Public Policy and Management, Sejong, Republic of Korea 3School of Law and Department of Quantitative Theory and Methods, Emory University, Atlanta, GA, USA Corresponding Author: Kevin M. Quinn, School of Law and Department of Quantitative Theory and Methods, Emory University, 1301 Clifton Road, Atlanta, GA 30322-1007, USA. Email: kevin.michael.quinn@emory.edu O > Creative Commons Non Commercial CC BY-NC: This article is distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 License (https://creativecommons.org/icenses/by-nc/4.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://ussagepub.comlen-us/nam/open-access-at-sage).