Why (and When) Judges Dissent: A Theoretical and Empirical Analysis, Lee Epstein

Following earlier work analyzing judicial behavior from an economic (rational-choice) standpoint, we set forth and test a model of self-interested judicial behavior. We assume, plausibly in the case of federal judges, who enjoy life tenure (and our empirical analysis is limited to such judges), that judges have leisure preference or, equivalently, effort aversion, which they trade off against their desire to have a good reputation and their desire to express their legal and policy beliefs and preferences (and by doing so perhaps influence law and policy) by their vote, and by the judicial opinion explaining their vote, in the cases they hear. We use this model to explore the phenomenon of judicial dissents, and in particular what we call dissent aversion, which sometimes causes a judge not to dissent even when he disagrees with the majority opinion.

We examine dissent aversion in both the federal courts of appeals and the U.S. Supreme Court. For example, we use dissent aversion to explain the well-documented panel-composition effect on judicial decisions in the U.S. courts of appeals. An implication of our model is that the effect, which is typically attributed to the power of judges with extreme conservative or liberal views to influence more moderate judges to vote with them, can be explained in terms of self-interested behavior that is independent of the influence of other judges.

Lee Epstein is the Henry Wade Rogers Professor at Northwestern University, and a Fellow of the American Academy of Arts and Sciences and the American Academy of Political and Social Science. A recipient of ten grants from the National Science Foundation for her work on law and legal institutions, Epstein has also authored, co-authored, or edited over 100 articles and essays, as well as 14 books, including the Constitutional Law for a Changing America series (winner of the Teaching and Mentoring Award from the Law and Courts Section of the American Political Science Association), The Supreme Court Compendium (winner of an Outstanding Academic Book Award from Choice), and The Choices Justices Make (recipient of the Pritchett award for the Best Book on Law and Courts). Her book with Jeff Segal, Advice and Consent: The Politics of Judicial Appointments (Oxford University Press), received extensive media coverage, with its findings reported in the Wall Street Journal and the New York Times, among other outlets.

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