Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts

1 Journal of Law and Empirical Analysis ___ (forthcoming 2024)

Duke Law School Public Law & Legal Theory Series No. 2024-04

34 Pages Posted: 18 Jan 2024

See all articles by Stuart Minor Benjamin

Stuart Minor Benjamin

Duke University School of Law

ByungKoo Kim

KDI School of Public Policy and Management; University of Michigan at Ann Arbor - Department of Political Science, Student

Kevin M. Quinn

Emory University School of Law

Date Written: January 17, 2024

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 consistent with 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: judges, courts, panels, partisanship, ideological differences, partisan differences, judging, empirical, party, Republicans, Democrats, Shepard's, judicial

JEL Classification: K41, K10, K19

Suggested Citation

Benjamin, Stuart Minor and Kim, ByungKoo and Quinn, Kevin M., Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts (January 17, 2024). 1 Journal of Law and Empirical Analysis ___ (forthcoming 2024), Duke Law School Public Law & Legal Theory Series No. 2024-04, Available at SSRN: https://ssrn.com/abstract=4692845

Stuart Minor Benjamin (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7275 (Phone)
919-613-7231 (Fax)

ByungKoo Kim

KDI School of Public Policy and Management ( email )

P.O. Box 184
Seoul, 130-868
Korea, Republic of (South Korea)

University of Michigan at Ann Arbor - Department of Political Science, Student ( email )

MI
United States

Kevin M. Quinn

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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