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Why (and When) Judges Dissent: A Theoretical and Empirical Analysis

41 Pages Posted: 31 Jan 2010  

Lee Epstein

Washington University in St. Louis - School of Law

William M. Landes

University of Chicago Law School; National Bureau of Economic Research (NBER)

Richard A. Posner

University of Chicago Law School; National Bureau of Economic Research (NBER)

Date Written: January 20, 2010

Abstract

This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.

Suggested Citation

Epstein, Lee and Landes, William M. and Posner, Richard A., Why (and When) Judges Dissent: A Theoretical and Empirical Analysis (January 20, 2010). U of Chicago Law & Economics, Olin Working Paper No. 510. Available at SSRN: https://ssrn.com/abstract=1542834 or http://dx.doi.org/10.2139/ssrn.1542834

Lee Epstein

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

HOME PAGE: http://epstein.wustl.edu

William M. Landes (Contact Author)

National Bureau of Economic Research (NBER)

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University of Chicago Law School ( email )

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Richard A. Posner

University of Chicago Law School ( email )

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Chicago, IL 60637
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773-702-9608 (Phone)
773-702-0730 (Fax)

National Bureau of Economic Research (NBER)

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Cambridge, MA 02138
United States

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