How Do Judges Decide?

Differences in how courts are designed—the numbers of judges, how the judges are selected, whether they decide cases in panels—create different incentives and options for how judges can decide cases. They can, for example, raise or lower the costs of a judge dissenting on an appeal. If a judge has to hear hundreds of appeals each year, she may not be as willing to take the time to write a dissenting opinion.1 If she is on a panel of three judges, would she be more or less likely to dissent than if she were on a panel of nine judges? The answer may lie in how the other judges view dissent and whether they would hold the disagreement against a dissenting judge.

To compare across high courts, then, we need to understand two things. First, we need to understand what judges consider when they decide appeals. They likely consider many things—the law, their reputation, their preferred outcome, and the other personal and professional demands on their time. Each may be important at different times. Second, we need to think about how these factors interact with how courts are set up. Our hypothesis is that the design of the particular court is central to what judges consider in deciding appeals. Given the role of judges in making their own rules, however, it is not a simple causal story about court structures dictating outcomes. A court’s design includes the rules set for a court by a legislature or Constitution, the formal rules and decisions made by the judges themselves about their own processes, and the norms of behavior on a particular court. How judges decide both is influenced by and influences the decision-making structure and processes. We will start with what judges think about when they decide.

1. Lee Epstein, William M. Landes & Richard A. Posner, Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013) [Epstein, Landes & Posner, Behavior] at 262.

Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green.

© Oxford University Press 2017. Published 2017 by Oxford University Press.

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