The Strategy of Judging: Evidence from Administrative Law

Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

“…The few studies that look beyond votes provide some evidence that lower court judges craft the text of their opinions to reduce the likelihood of reversal. There is evidence from administrative law cases that circuit judges strategically select legal grounds that are more difficult to overturn on appeal when facing potential review from an ideological opponent (Smith and Tiller 2002). Another study demonstrates that federal district judges utilize more hedging language, which makes conclusions more difficult to falsify, when they are more ideologically distant from the reviewing circuit (Hinkle et al 2012).…”

Electoral Pressures and the Legal System: Friends or Foes?

“…In addition, Republican appointees have been found to rule against the Environmental Protection agency in environmental law cases more often than Democratic appointees (Smith and Tiller 2002). Schanzenbach (2005: 59-60) aptly categorizes the research on the effect of judicial characteristics when he states that "…the literature has consistently 1 Russell S. Sobel is the James Clark Coffman Chair in Entrepreneurial Studies at West Virginia University.…”

Administrative Appeals to the U.S. Supreme Court: The Importance of Legal Signals

“…Although studies of the judiciary have shown that case outcomes, at least at the Supreme Court level, are determined by attitudes (Pritchett 1948;Schubert 1958Schubert , 1959Spaeth 1964;Danelski 1966;Segal & Cover 1989;Segal & Spaeth 1993), strategic theorists have observed that the crafting of opinion content might be affected by the behavior of others on and off the bench (Spiller & Spitzer 1992;Epstein & Knight 1998;Tiller & Spiller 1999;Maltzman et al 2000;Smith & Tiller 2002;Hume 2006). Although studies of the judiciary have shown that case outcomes, at least at the Supreme Court level, are determined by attitudes (Pritchett 1948;Schubert 1958Schubert , 1959Spaeth 1964;Danelski 1966;Segal & Cover 1989;Segal & Spaeth 1993), strategic theorists have observed that the crafting of opinion content might be affected by the behavior of others on and off the bench (Spiller & Spitzer 1992;Epstein & Knight 1998;Tiller & Spiller 1999;Maltzman et al 2000;Smith & Tiller 2002;Hume 2006).…”

“…1 More recently, Hume (2006) has shown that U.S. Supreme Court Justices make strategic use of sources like the Federalist Papers in order to enhance the legitimacy of case outcomes (see also Corley et al 2005). 2 To be sure, a finding that litigants respond to legal signals does not necessarily mean that judges consciously craft their opinions with certiorari in mind, although such a finding would be consistent with strategic explanations (Smith & Tiller 2002;Corley et al 2005;Hume 2006). 2 1 As Smith and Tiller (2002:61-62) observe: "There are compelling reasons to believe that the choice of a particular judicial instrument has important consequences for determining how resistant decisions are to reversal bodies with authority to review the court's decisions."…”

“…Either interpretation is defensible, and future research can determine which is correct, although it should be noted that an emerging literature has shown that judges do take strategic goals into account when they are assembling their opinions (Smith & Tiller 2002;Corley et al 2005;Hume 2006). It is possible that judges write their opinions sincerely, reflecting their honest views of what the law requires, and that administrators are not so much vulnerable to the strategies of clever judges as they are responsive to authoritative statements about the law.…”