Small‐Group Dynamics, Ideology, and Decision Making on the US Courts of Appeals

• Date: 01 January 2017
• Published date: 01 January 2017
• Author: Banks Miller,Brett Curry
• DOI: http://doi.org/10.1111/lapo.12064

Small-Group Dynamics, Ideology, and Decision

Making on the US Courts of Appeals

BANKS MILLER and BRETT CURRY

There is some evidence that judges who specialize in particular legal areas vote in more

ideologically consistent ways than do nonspecialists. Upon replicating those individual results

across multiple legal areas in the US courts of appeals, we assess how this increasing reliance on

ideology by specialists affects decision making by others on a three-judge panel. We find that

judges who serve with a specialist are especially likely to vote in a manner consistent with the

ideological position of the specialist with whom they serve. These results suggest that

specialization has the potential to facilitate panel effects across numerous legal policy areas.

The extent to which people specialize within organizations is a dimension or attribute

of organizational structure, and like other structural attributes it can shape what

those organizations do.

—Baum (2011, 4)

The psychology of small-group decision making is well understood. Yet, as Martinek

(2010) has noted, such theories have not been widely applied to investigations of decision

making in courts. This is curious, because these theories fit well with the nature of the task

that most appellate courts face. Levine and Moreland (1994) define a small group as a col-

lection of individuals who interact regularly, share a common frame of reference, and are

behaviorally interdependent. Judges on appellate courts readily meet these criteria (Mar-

tinek 2010). Here we apply insights from psychology and theories of small-group decision

making in an effort to understand an important question: to what extent do the character-

istics of judges alter the decision making of copanelists on the US courts of appeals and,

ultimately, the policy outputs of those courts? This question has potentially wide-ranging

implications for understanding decision making within collegial courts as well as within

other small groups that contribute to policy formation, such as congressional committees,

agencies, or juries where members may have varying levels of expertise depending on the

subject under consideration (e.g., Frey, Schultz-Hardt, and Stahlberg 1996).

Specifically, we isolate one potentially salient individual characteristic—subject matter

specialization—and seek to determine the effects of this characteristic on decision making

in the US courts of appeals. Evidence from specialized courts (Miller and Curry 2009)

and, in one particular issue area, from the courts of appeals more generally (Curry and

Address correspondence to: Banks Miller, University of Texas at Dallas, Political Science Program, School of

Economics, Political and Policy Sciences, 800 W. Campbell Rd., Richardson, TX, USA 75080. Telephone:

(972) 883-2930; e-mail: millerbp@utdallas.edu.

LAW & POLICY, Vol. 39, No. 1, January 2017 ISSN 0265–8240

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C2016 The Authors

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doi: 10.1111/lapo.12064

Miller 2015) suggests that judges who are specialists will be more ideological than those

who are not. Therefore, as a preliminarymatter, we seek to confirm thisfinding across mul-

tiple issue areas in courts of general jurisdiction. Our more important question centers on

the extent to which enhanced ideological decision making by specialists affects decision

making by nonspecialists who serve on panels with a specialist. As we note below, small-

group theory suggests that such a spillover effect is possible; demonstratingthe existence of

such an effect among appellate judges—and, to the extent possible, making inferences

about the mechanisms by which those panel effects occur—highlights the importance of

understanding how specialization, not to mention other background characteristics, influ-

ences decisionmaking. This focus on small-group decisionmaking may initially strike read-

ers as unorthodox, given that our study’s dependent variable is the individual vote choice.

In reality, however, with this emphasis on group dynamics we seek to elucidate a more

individual-level objective: we aim to shed additional light on the circumstances that may

serve to conditionthe influence of ideology on a judge’sdecision making.

We examine judicial specialization—captured by specialization in opinion authorship—as

it pertains to published and unpublished cases involving antitrust litigation, environmental

law, securities litigation, and search-and-seizure matters across all federal circuit courts in

order to investigate the circumstances under which specialization may alter the dynamics of

small-group decision making and, thus, judicial outcomes. We begin by discussing the

empirical literature on judicial specialization. Then we provide an overview of relevant schol-

arship on small-group decision making and judicial panel effects, describe the four areas of

law we examine, and present hypotheses that consider the relevance of opinion specialization

and ideology to decision making. We then discuss measurement and modeling issues, as well

as our data collection strategy, before presenting our results. Those results lead us to con-

clude that opinion specialists are more ideological than their nonspecialist peers and that

judges who serve with a specialist are particularly likely to adopt the ideological position of

the specialist with whom they serve. Further, and consistent with research on small-group

decision making that we outline below, a series of auxiliary analyses leads us to conclude

that these effects are not likely the result of a simple exchange of votes within the panel and

may be driven by an exchange of information. We conclude by assessing the potential impli-

cations of these results, speculating about the broader consequences of judicial specializa-

tion, and proposing several directions for future research.

THE LANDSCAPE OF JUDICIAL SPECIALIZATION

In order to establish a theoretical foundation for our expectation that specialists will be

more ideological in their decision making than their nonspecialist counterparts and to

highlight potential mechanisms by which specialists may influence their nonspecialist col-

leagues, we turn to the emerging literature on the effects of specialization and expertise in

judicial decision making. Although ideology’s influence on judicial decision making is

well established in many contexts (Hettinger, Lindquist, and Martinek 2004; Segal and

Spaeth 2002; Goldman 1975; Goldman 1966), relatively few studies have investigated its

relationship to judicial choice in conjunction with specialization in particular subject mat-

ters (Miller and Curry 2009; Unah 1998; Hansen, Johnson, and Unah 1995; see Baum

1977). To the extent that such forays have been made, they have centered on the idea that

specialization may be especially relevant to ideology’s influence within difficult or techni-

cal areas of law. Extant scholarship has suggested that such a relationship likely derives in

part from an enhanced capacity of specialists to apply ideological principles in certain

types of situations, because in such instances these specialists are particularly motivated

Miller and Curry SMALL-GROUP DYNAMICS 49

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