Whistleblowing and Compliance in the Judicial Hierarchy

Beim, Deborah; Hirsch, Alexander V.; Kastellec, Jonathan P.

doi:10.1111/ajps.12108

Cited by 62 publications

(38 citation statements)

References 35 publications

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“…Existing theories have demonstrated that a lower court's private information about a case's facts creates an incentive for an upper court to defer (e.g., Beim 2017; Beim, Hirsch, and Kastellec 2014;Cameron, Segal, and Songer 2000;Carrubba and Clark 2012;Clark and Carrubba 2012;Lax 2012). However, the particular way that fact finding is conceptualized (and therefore modeled) matters for understanding both the scope and form of this deference (see Stephenson 2011).…”

Section: Fact Finding In the Judicial Hierarchymentioning

confidence: 99%

“…Second, this article adds to recent models focused on the role of opinion writing in managing hierarchical relationships between courts, and between courts and legislatures (e.g., Beim, Hirsch, and Kastellec 2014;Clark and Carrubba 2012;Staton and Vanberg 2008). Clark and Carrubba (2012) conceive of opinions as consisting of legal rules and persuasive quality.…”

Section: Fact Finding In the Judicial Hierarchymentioning

confidence: 99%

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Getting Their Way: Bias and Deference to Trial Courts

Hübert

2019

American J Political Sci

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How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to "get their way" more often. Third, de facto law as represented by trial judges' case-by-case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.

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Section: Fact Finding In the Judicial Hierarchymentioning

confidence: 99%

Section: Fact Finding In the Judicial Hierarchymentioning

confidence: 99%

Getting Their Way: Bias and Deference to Trial Courts

Hübert

2019

American J Political Sci

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“…Although dissenting opinions at the Supreme Court have become more common (Corley et al ), unanimity is a powerful norm at the U.S. Courts of Appeals (Cross ; Kim ). Dissenters are argued to be whistleblowers in the federal judicial hierarchy, signaling potential deviation from Supreme Court or circuit precedent or procedure (Beim et al ; Blackstone & Collins ; Cross & Tiller ; Hazelton et al ). The presence of a dissent has long been thought to be a factor in decisions on certiorari (Tanenhaus et al ; Ulmer et al ).…”

Section: Separate Opinion Writing In the Federal Courtsmentioning

confidence: 99%

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Mak¹,

Sidman²

2020

J Empirical Legal Studies

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Most of the empirical work on separate opinion writing by lower federal court judges examines the U.S. Courts of Appeals. Given the Supreme Court's discretionary jurisdiction, it is argued that dissenting opinions operate as a cue signaling that a case is worthy of review. Concurrences, on the other hand, allow judges to join dispositional majorities while still expressing differences in legal reasoning from the majority. Likely in an effort to minimize dissent, the behavior of circuit court judges is found to be less influenced by ideology when potential dissenters serve with them. Despite the specter of Supreme Court review, these works generally find that the motivation to write separately is based largely in ideologically differences among panelists and less so on preferences of the Supreme Court. What, however, does separate opinion writing look like when the Court's jurisdiction is mandatory, as it is over three‐judge district court panels? Among other uses required by law, these district court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These panels also differ from the traditional judicial structure by placing district court judges, who traditionally decide cases individually, in a multimember setting with another district court judge and a circuit court judge. Examining separate opinion writing on these panels, we find that ideological distance from the majority opinion writer is still an important factor. This, however, is conditioned by the preferences of the Supreme Court, which exert a much stronger influence over behavior than they do in the traditional appellate court setting.

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“…2 In the context of lower and upper court relationships, Carubba and Zorn (2010), Carubba and Clark (2012), Clark and Carubba (2012), Beim, Hirsch, and Kastellec (2014), and Hübert (2019) consider how a lower court may strategically issue a judgement to avoid being overturned by an upper court. These papers generally consider a one-shot game and cannot explain the evolution of jurisprudence over time.…”

Section: Literature Reviewmentioning

confidence: 99%

Executive Absolutism: A Model

2019

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Separated powers cannot permanently constrain individual ambitions. Concerns about a government's ability to respond to contemporary and future crises, we show, invariably compromise the principled commitments one branch of government has in limiting the authority of another. We study a dynamic model in which a politician (most commonly an executive) makes authority claims that are subject to a hard constraint (administered, typically, by a court). At any period, the court is free to rule against the executive and thereby permanently halt her efforts to acquire more power. Because it appropriately cares about the executive's ability to address real-world disruptions, however, the court is always willing to affirm more authority. Neither robust electoral competition nor alternative characterizations of judicial rule fundamentally alters this state of affairs. The result, we show, is a persistent accumulation of executive authority.

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Whistleblowing and Compliance in the Judicial Hierarchy

Cited by 62 publications

References 35 publications

Getting Their Way: Bias and Deference to Trial Courts

Getting Their Way: Bias and Deference to Trial Courts

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Executive Absolutism: A Model

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