This paper develops and analyzes a hierarchical model of judicial review in multimember appellate courts. In our model, judicial panels acquire information endogenously, through the efforts of individual panelists, acting strategically. The resulting equilibria strongly resemble the empirical phenomena collectively known as "panel effects" – and in particular the observed regularity with which ideological diversity on a panel predicts greater moderation in voting behavior (even after controlling for the median voter's preferences). In our model, non-pivotal panel members with ideologies far from the median have the greatest incentive to acquire additional policy-relevant information where no one on a unified panel would be willing to do so. The resulting information structure pushes deliberation and observed voting patterns towards apparent moderation. We illustrate the plausibility of our model by calibrating it to empirical data, and explore various normative implications of our theory.
Matthew L. Spitzer & Eric L. Talley,
Left, Right, and Center: Strategic Information Acquisition and Diversity in Judicial Panels,
Journal of Law, Economics & Organization, Vol. 29, p. 638, 2013; UC Berkeley Public Law Research Paper No. 1832765
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1693