Trading Votes for Reasoning: Covering in Judicial Opinions

50 Pages Posted: 3 Sep 2007 Last revised: 25 Mar 2008

See all articles by Stephen J. Choi

Stephen J. Choi

New York University School of Law

G. Mitu Gulati

Duke University School of Law

Abstract

Several studies report that judges on panels together with at least one judge of a different political party (a "mixed panel") tend to moderate their votes, particularly on politically charged subject matter cases. We examine whether this observed moderation in voting is the product of bargaining among mixed panel judges, where authoring judges, who might otherwise face a dissenting vote (or find themselves in dissent), trade their votes for the ability to craft a unanimous majority opinion closer to their own policy preferences and thereby affect the opinion's precedential value. Using judicial citation patterns within individual opinions as a proxy for how judges reason, we report that authoring judges on mixed panels are more likely to employ partisan reasoning for opinions relating to salient subject matter areas. Partisan reasoning in top salient areas is higher where the authoring judges have more bargaining leverage over opposite party judges on the same panel. Finally, partisanship in top salient areas is greater for authoring judges who have greater skill at writing influential opinions. The overall pattern is consistent with judges engaging in covering: moderating their voting when associated with an opposite party judge on the same panel, a highly visible activity, but adjusting the judicial reasoning in the opinion to tilt the decision back toward the authoring judge's own preferred ideological position, a less visible activity done under the cover of the more visible, moderated vote.

Keywords: judges, courts

JEL Classification: K23, K41

Suggested Citation

Choi, Stephen J. and Gulati, Gaurang Mitu, Trading Votes for Reasoning: Covering in Judicial Opinions. Duke Law School Legal Studies Paper No. 166; NYU Law and Economics Research Paper No. 07-31; NYU Law School, Public Law Research Paper No. 07-15. Available at SSRN: https://ssrn.com/abstract=1010311

Stephen J. Choi (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Gaurang Mitu Gulati

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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