Assessing the Applicability of Strategic Theory to Explain Decision Making on the Courts of Appeals

Abstract

Assessing the Applicability of Strategic Theory to Explain Decision Making on the Courts of AppealsThe focus of this analysis is whether a strategic perspective provides a useful approach that enhances an understanding of broad patterns of judicial decision making on the U.S. Courts of Appeals. We examine whether it is reasonable in the majority of cases for appeals court judges to modify their behavior when necessary to avoid reversal by the Supreme Court. Our assessment utilizes statistical analyses and interviews from 28 judges on the U.S. Courts of Appeals. Based on a three part argument we conclude that a strategic perspective is not helpful in understanding the decision calculus of appeals court judges.

Does Shareholder Litigation Risk Cause Public Firms to Delist? Evidence from Securities Class Action Lawsuits

“…Therefore, circuit courts are the courts of last resort for most, if not all, SCA lawsuits. Hence, the ideology of a circuit court has the greatest influence on expected lawsuit outcomes (Bowie and Songer (2009), Choi, Gulati, and Posner (2012)). Prior work shows that in civil liberties and economics cases, the rulings of district court judges reflect the ideological preferences of the circuit court's judges (Randazzo (2008), Choi et al (2012)).…”

“…Parties may file a "writ of certiorari" to the court, asking for an appeal, but this is rarely granted. Less than 1% of appeals to the Supreme Court are actually granted (Bowie and Songer (2009)).…”

Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts

“…Despite clear provisions to reduce the role of judicial discretion in deciding and reviewing in absentia cases, could it still be that circuit judges' policy preferences affect their decision-making in the review of motions to reopen in absentia orders? Empirical evidence of preference-based judging in federal circuit courts abounds across a variety of case types (e.g., Bowie and Songer 2009;Bowie, Songer, and Szmer 2014;Broscheid 2011;George 1998;Haire 2006;Sidman 2020, 2022;Nelson, Hazelton, and Hinkle 2021;Sunstein et al 2006). This also holds for judging in the immigration context, both in immigration courts (e.g., Asad 2019;Miller, Keith, and Holmes 2015a;Ramji-Nogales, Schoenholtz, and Schrag 2007; but see, e.g., Kim and Semet 2020) and in circuit courts acting in a judicial review role (e.g., Hamlin 2014;Law 2005;Law 2010;Westerland 2009;Williams and Law 2012; but see Gill, Kagan, and Marouf 2019).…”

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