Litigation and Settlement in the Federal Appellate Courts: Impact of Panel Selection Procedures on Ideologically Divided Courts
Posted: 25 Jan 2000
This article compares, in the context of an ideologically divided court, the incentives for litigation and settlement of the D.C. Circuit practice of announcing the composition of its panels before the parties have prepared and filed their briefs. In contrast, the remaining federal circuit courts announce the composition of their panels only after the filing of the briefs and shortly before the oral argument. One reason for the D.C. Circuit's adoption of its practice was the belief that it would encourage settlements and reduce the court's adjudicatory burden, as a result of the perception by litigants that judges on the D.C. Circuit vote in an ideological manner.
This article shows that the D.C. Circuit practice gives rise to certain litigation-reducing and settlement-inducing incentives, but that it gives rise to countervailing incentives as well. Thus, no categorical claim can be made about whether departing from the majority practice has the desired effect. Moreover, the article also provides insights into the effects of this practice on the court's ideological divisions.
The analysis in the article is also useful to an understanding of the incentives for litigation and settlement generated in a variety of adjudicatory situations in which the identity of the adjudicator is thought to have an effect on the outcome of the case, including the decision of D.C. Circuit panels to retain jurisdiction following a remand, and the choice between bench trials and jury trials. The article also provides an explanation unrelated to the existence of asymmetric information for the existence of settlements that are entered into after litigation has commenced.
JEL Classification: K41
Suggested Citation: Suggested Citation