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Splitting the Difference: Modeling Appellate Court Decisions with Mixed Outcomes

Published online by Cambridge University Press:  01 January 2024

Stefanie A. Lindquist ,
Wendy L. Martinek  and
Virginia A. Hettinger
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Abstract

In rendering a decision in a particular case, judges are not limited to finding simply for the appellant or for the respondent. Rather, in many cases, they have the option to find for the former on one or more issues and for the latter on one or more other issues. By thus “splitting the difference,” judges can render a judgment that favors both litigants to some degree. What accounts for such mixed outcomes? Several theoretical perspectives provide potential explanations for this phenomenon. First, Galanter (1974) suggests that litigants with greater resources will achieve more favorable outcomes in the courts. Where two high-resource, repeat-player litigants meet in the appeals courts, these more sophisticated and successful parties may be able to persuade the court to render decisions with mixed outcomes that at least partially favor each party. Second, split outcomes may result from strategic interactions among the appeals court judges on the decisionmaking panel. Where majority opinion writers seek to accommodate other judges on the panel, split outcomes have the potential to serve as an inducement for more ideologically extreme judges to join the majority opinion. Finally, Shapiro and Stone Sweet (Stone Sweet 2000; Shapiro & Stone Sweet 2002) propose that courts will sometimes split the difference in order to enhance their legitimacy (and ultimately enhance compliance by losing parties). For example, in highly salient cases, where noncompliance would more clearly threaten court legitimacy, judges may be more likely to split the difference in order to mollify even the losing party. We develop an empirical model of mixed outcomes to test these propositions using data available from the U. S. Courts of Appeals Database and find evidence supportive of all three theoretical perspectives.

Type
Articles of General Interest
Information
Law & Society Review , Volume 41 , Issue 2 , June 2007 , pp. 429 - 455
Copyright
© 2007 Law and Society Association.

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Footnotes

Much earlier versions of this research were presented at the 2004 and 2005 annual meetings of the American Political Science Association. We appreciate the helpful suggestions provided by the panelists and audience members at those meetings, especially Christopher Banks, Sara C. Benesh, Mark S. Hurwitz, Wayne V. McIntosh, Kirk A. Randazzo, and Christopher Zorn. Harold J. Spaeth merits particular thanks, as always, for the comments and insights he offered on this and related projects. We also thank the faculty and students at the University of Kentucky (Kirk A. Randazzo, in particular) and Binghamton University (Michael D. McDonald, in particular) for the insights they provided when various stages of this work were presented at these institutions. Finally, we are grateful for the unusually careful and thoughtful feedback offered by the anonymous reviewers and the editor.

References

References

Administrative Office of the Courts (1984) Annual Report of the Director of the Administrative Office of the U.S. Courts, 1984. Washington, DC: GPO.Google Scholar
Administrative Office of the Courts (2004) Annual Report of the Director of the Administrative Office of the U.S. Courts, 2004. Washington, DC: GPO.Google Scholar
Aldrich, John H., & Nelson, Forrest D. (1984) Linear Probability, Logit, and Probit Models. Beverly Hills, CA: Sage.CrossRefGoogle Scholar
Atkins, Burton M. (1991) “Party Capability Theory as an Explanation for Intervention Behavior in the English Court of Appeal,” 35 American J. of Political Science 881–903.CrossRefGoogle Scholar
Benesh, Sara C. (2002) The U.S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice. New York: LFB Scholarly Publishing.Google Scholar
Brace, Paul, & Hall, Melinda Gann (1993) “Integrated Models of Judicial Dissent,” 55 J. of Politics 914–35.Google Scholar
Brace, Paul, & Hall, Melinda Gann (1995) “Studying the Courts Comparatively: The View from the American States,” 48 Political Research Q. 5–29.CrossRefGoogle Scholar
Brace, Paul, & Hall, Melinda Gann (2001) “‘Haves’ Versus ‘Have Nots’ in State Supreme Courts: Allocating Docket Space and Wins in Power Asymmetric Cases,” 35 Law & Society Rev. 393–418.CrossRefGoogle Scholar
Brenner, Saul, & Krol, John F. (1989) “Strategies in Certiorari Voting on the United States Supreme Court,” 51 J. of Politics 828–40.CrossRefGoogle Scholar
Caldeira, Gregory A., & Wright, John R. (1988) “Organized Interests and Agenda Setting in the U.S. Supreme Court,” 82 American Political Science Rev. 1109–27.CrossRefGoogle Scholar
Caldeira, Gregory A., & Wright, John R. (1990) “Amici Curiae before the Supreme Court: Who Participates, When, and How Much?,” 52 J. of Politics 782–806.CrossRefGoogle Scholar
Caldeira, Gregory A., et al. (1999) “Sophisticated Voting and Gate-Keeping in the Supreme Court,” 15 J. of Law, Economics & Organization 549–72.CrossRefGoogle Scholar
Cohen, Jonathan Matthew (2002) Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Collins, Paul M. Jr. (2004) “Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation,” 38 Law & Society Rev. 807–32.CrossRefGoogle Scholar
Cross, Frank, & Tiller, Emerson (1998) “Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals,” 107 Yale Law J. 2155–76.CrossRefGoogle Scholar
Epstein, Lee, & Knight, Jack (2000) “Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead,” 53 Political Research Q. 625–61.CrossRefGoogle Scholar
Farole, Donald J. Jr. (1999) “Reexamining Litigant Success in State Supreme Courts,” 33 Law & Society Rev. 1043–58.Google Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
George, Tracey (1999) “The Dynamics and Determinants of the Decision to Grant En Banc Review,” 74 Washington Law Rev. 213–74.Google Scholar
Gerken, Joseph L. (2004) “A Librarian's Guide to Unpublished Judicial Opinions,” 96 Law Library J. 475–501.Google Scholar
Gibson, James L. (1989) “Understandings of Justice: Institutional Legitimacy, Procedural Justice, and Political Tolerance,” 23 Law & Society Rev. 469–96.CrossRefGoogle Scholar
Gibson, James L., & Caldeira, Gregory A. (1995) “The Legitimacy of Transnational Legal Institutions: Compliance, Support and the European Court of Justice,” 39 American J. of Political Science 459–89.CrossRefGoogle Scholar
Giles, Michael W., et al. (2002) “Measuring the Preferences of Federal Judges: Alternatives to Party of the Appointing President.” Typescript, Emory University.Google Scholar
Goldman, Sheldon (1966) “Voting Behavior on the United States Courts of Appeals, 1961-1964,” 60 American Political Science Rev. 374–83.CrossRefGoogle Scholar
Goldman, Sheldon (1975) “Voting Behavior on the United States Courts of Appeals Revisited,” 69 American Political Science Rev. 491–506.CrossRefGoogle Scholar
Hall, Melinda Gann (1992) “Electoral Politics and Strategic Voting in State Supreme Courts,” 54 J. of Politics 427–46.CrossRefGoogle Scholar
Hall, Melinda Gann, & Brace, Paul (1999) “State Supreme Courts and Their Environments: Avenues to General Theories of Judicial Choice,” in Clayton, C. W. & Gillman, H., eds., Supreme Court Decision-Making: New Institutionalist Approaches. Chicago: Univ. of Chicago Press.Google Scholar
Haynie, Stacia L. (1994) “Resource Inequalities and Litigation Outcomes in the Philippine Supreme Court,” 56 J. of Politics 752–72.CrossRefGoogle Scholar
Haynie, Stacia L., et al. (2005) “Winners and Losers: Appellate Court Outcomes in Comparative Perspective,” Paper presented at the annual meeting of the American Political Science Association,. Washington, DC.Google Scholar
Hettinger, Virginia A., et al. (2003a) “The Role and Impact of Chief Judges on the United States Courts of Appeals,” 24 Justice System J. 91–117.Google Scholar
Hettinger, Virginia A., et al. (2003b) “Separate Opinion Writing on the United States Courts of Appeals,” 31 American Politics Research 215–50.CrossRefGoogle Scholar
Hettinger, Virginia A., et al. (2004) “Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals,” 48 American J. of Political Science 123–37.CrossRefGoogle Scholar
Hettinger, Virginia A., et al. (2006) Judging on a Collegial Court. Charlottesville: Univ. of Virginia Press.Google Scholar
Howard, J. Woodford Jr. (1981) Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits. Princeton, NJ: Princeton Univ. Press.CrossRefGoogle Scholar
Hurst, James Willard (1956) Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison: Univ. of Wisconsin Press.Google Scholar
Kearney, Joseph D., & Merrill, Thomas W. (2000) “The Influence of Amicus Curiae Briefs on the Supreme Court,” 148 University of Pennsylvania Law Rev. 743–855.CrossRefGoogle Scholar
Kearney, Richard C., & Sheehan, Reginald S. (1992) “Supreme Court Decision Making: The Impact of Court Composition on State and Local Government Litigation,” 54 J. of Politics 1008–25.CrossRefGoogle Scholar
Kritzer, Herbert M. (2003) “The Government Gorilla: Why Does Government Come Out Ahead in Appellate Courts?,” in Kritzer, H. M. & Silbey, S., eds., In Litigation: Do the “Haves” Still Come Out Ahead? Stanford, CA: Stanford Univ. Press.Google Scholar
Krol, John F., & Brenner, Saul (1990) “Strategies in Certiorari Voting on the United States Supreme Court: A Reevaluation,” 43 Western Political Q. 335–42.CrossRefGoogle Scholar
Langer, Laura (2002) Judicial Review in State Supreme Courts: A Comparative Study. Albany: State Univ. of New York Press.CrossRefGoogle Scholar
Maltzman, Forrest, et al. (2000) Crafting Law on the Supreme Court: The Collegial Game. New York: Cambridge Univ. Press.Google Scholar
McCormick, Peter (1993) “Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949-1992,” 26 Canadian J. of Political Science 523–40.CrossRefGoogle Scholar
Mondak, Jeffrey J. (1993) “Institutional Legitimacy and Procedural Justice: Reexamining the Question of Causality,” 27 Law & Society Rev. 599–608.CrossRefGoogle Scholar
Norton, Edward C., et al. (2004) “Computing Interaction Effects and Standard Errors in Logit and Probit Models,” 4 The Stata J. 103–16.CrossRefGoogle Scholar
Perry, Barbara A. (1999) The Priestly Tribe: The Supreme Court's Image in the American Mind. Westport, CT: Praeger.Google Scholar
Poole, Keith T. (1998) “Recovering a Basic Space from a Set of Issue Scales,” 42 American J. of Political Science 954–93.CrossRefGoogle Scholar
Posner, Richard A. (1985) The Federal Courts: Crisis and Reform. Cambridge, MA: Harvard Univ. Press.Google Scholar
Reddick, Anna Malia (1997) “The Applicability of Legal and Attitudinal Models to the Treatment of Precedent in the Courts of Appeals,” Ph.D. dissertation, Michigan State University.Google Scholar
Revesz, Richard L. (1997) “Environmental Regulation, Ideology, and the D.C. Circuit,” 83 Virginia Law Rev. 1717–72.CrossRefGoogle Scholar
Rosenberg, Gerald N. (1991) The Hollow Hope: Can Courts Bring About Social Change? Chicago: Univ. of Chicago Press.Google Scholar
Shapiro, Martin (1981) Courts: A Comparative and Political Analysis. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Shapiro, Martin (1994) “Judges as Liars,” 17 Harvard J. of Law and Public Policy 155–6.Google Scholar
Shapiro, Martin, & Stone Sweet, Alec (2002) On Law, Politics, & Judicialization. Oxford, United Kingdom: Oxford Univ. Press.CrossRefGoogle Scholar
Sheehan, Reginald S. (1992) “Governmental Litigants, Underdogs, and Civil Liberties: A Reassessment of a Trend in Supreme Court Decisionmaking,” 45 Western Political Q. 27–39.CrossRefGoogle Scholar
Sheehan, Reginald S., et al. (1992) “Ideology, Status, and the Differential Success of Direct Parties before the Supreme Court,” 86 American Political Science Rev. 464–71.CrossRefGoogle Scholar
Smyth, Russell (2000) “The ‘Haves’ and the ‘Have Nots’: An Empirical Study of the Rational Actor and Party Capability Hypotheses in the High Court 1948-99,” 35 Australian J. of Political Science 255–74.CrossRefGoogle Scholar
Songer, Donald R. (1982) “Consensual and Nonconsensual Decisions in Unanimous Opinions of the United States Courts of Appeals,” 26 American J. of Political Science 225–39.CrossRefGoogle Scholar
Songer, Donald R., & Haire, Susan (1992) “Integrating Alternative Approaches to the Study of Judicial Voting: Obscenity Cases in the U.S. Courts of Appeals,” 36 American J. of Political Science 963–82.CrossRefGoogle Scholar
Songer, Donald R., & Kuersten, Ashlyn, et al. (2000) “Why the Haves Don't Always Come Out Ahead: Repeat Players Meet Amici Curiae for the Disadvantaged,” 53 Political Research Q. 537–56.Google Scholar
Songer, Donald R., & Segal, Jeffrey A., et al. (1994) “The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions,” 38 American J. of Political Science 673–96.CrossRefGoogle Scholar
Songer, Donald R., & Sheehan, Reginald (1992) “Who Wins on Appeal? Underdogs and Upperdogs in the U.S. Courts of Appeals,” 36 American J. of Political Science 235–58.CrossRefGoogle Scholar
Songer, Donald R., & Sheehan, Reginald S., et al. (1999) “Do the ‘Haves’ Come Out Ahead Over Time? Applying Galanter's Framework to Decisions of the U.S. Courts of Appeals, 1925-1988,” 33 Law & Society Rev. 811–32.CrossRefGoogle Scholar
Songer, Donald R., & Sheehan, Reginald S., et al. (2000) Continuity and Change on the United States Courts of Appeals. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Spriggs, James F. II, & Hansford, Thomas G. (2001) “Explaining the Overruling of U.S. Supreme Court Precedent,” 63 J. of Politics 1091–1111.CrossRefGoogle Scholar
Stone Sweet, Alec (2000) Governing with Judges: Constitutional Politics in Europe. Oxford, United Kingdom: Oxford Univ. Press.CrossRefGoogle Scholar
Stone Sweet, Alec (2002) “Judicialization and the Construction of Governance,” in Stone Sweet, A., ed., On Law, Politics, & Judicialization. Oxford, United Kingdom: Oxford Univ. Press.Google Scholar
Stone Sweet, Alec, & Brunell, Thomas (2002) “The European Court and Integration,” in Stone Sweet, A., ed., On Law, Politics, & Judicialization. Oxford, United Kingdom: Oxford Univ. Press.Google Scholar
Sunstein, Cass (2003) Why Societies Need Dissent. Cambridge, MA: Harvard Univ. Press.Google Scholar
Tyler, Tom R. (1990) Why People Obey the Law. New Haven, CT: Yale Univ. Press.Google Scholar
Ulmer, S. Sidney (1985) “Governmental Litigants, Underdogs, and Civil Liberties in the Supreme Court: 1903-1968 Terms,” 47 J. of Politics 899–909.CrossRefGoogle Scholar
Van Winkle, Steven R. (1997) “Dissent as a Signal: Evidence from the U.S. Courts of Appeals,” Paper presented at the annual meeting of the American Political Science Association, Washington, DC.Google Scholar
Wahlbeck, Paul J., et al. (1998) “Marshalling the Court: Bargaining and Accommodation on the United States Supreme Court,” 42 American J. of Political Science 294–315.CrossRefGoogle Scholar
Wahlbeck, Paul J., et al. (1999) “The Politics of Dissents and Concurrences on the U.S. Supreme Court,” 27 American Politics Q. 488–514.CrossRefGoogle Scholar
Wanner, Craig (1975) “The Public Ordering of Private Relations: Part I: Initiating Civil Cases in Urban Trial Courts,” 8 Law & Society Rev. 421–40.Google Scholar
Wasby, Stephen L. (2001) “Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish,” 3 J. of Appellate Practice and Process 325–41.Google Scholar
Westerland, Chad (2003) “Who Owns the Majority Opinion? An Examination of Policy Making on the U.S. Supreme Court,” Paper presented at the annual meeting of the American Political Science Association, Philadelphia, PA.Google Scholar
Wheeler, Stanton, et al. (1987) “Do the ‘Haves’ Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970,” 21 Law & Society Rev. 403–45.CrossRefGoogle Scholar
Yarnold, Barbara M. (1995) “Do Courts Respond to the Political Clout of Groups or to Their Superior Litigation Resources/‘Repeat Player’ Status?,” 18 Justice System J. 29–42.CrossRefGoogle Scholar

Case Cited

Brown v. Board of Education, 347 U.S. 483 (1954).Google Scholar