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Judicial disharmony: A study of dissent

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  • Niblett, Anthony
  • Yoon, Albert H.

Abstract

While it is well documented that judges at times disagree on case outcomes, less understood is the process by which they justify their divergence. In this article, we empirically examine how judges differ in their view of the relevant law to a case. We create a unique dataset looking at the universe of published opinions in federal appellate court cases from the United States between 2001 and 2005 that include a dissenting opinion. We find that judges who disagree on the outcome of a case disagree as to which binding precedents apply. Authoring judges gravitate toward precedents that are ideologically similar to their own preferences. Precedents cited only by the majority are strongly ideologically correlated with the majority author's preferences; precedents cited only by the dissenting judge are ideologically similar to her preferences. Precedents cited by both the majority and dissent (i.e., precedent that both judges agree are relevant to the case before them) are not ideologically correlated with either judge. Our findings provide strong evidence that judicial differences over case outcomes do not reflect judges’ divergent interpretations of the same precedent, but gravitation towards largely different precedent.

Suggested Citation

  • Niblett, Anthony & Yoon, Albert H., 2015. "Judicial disharmony: A study of dissent," International Review of Law and Economics, Elsevier, vol. 42(C), pages 60-71.
    • Handle: RePEc:eee:irlaec:v:42:y:2015:i:c:p:60-71
    DOI: 10.1016/j.irle.2014.12.002
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    References listed on IDEAS

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    1. Chad Westerland, 2007. "The Judicial Common Space 1," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 303-325, June.
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    8. Virginia A. Hettinger & Stefanie A. Lindquist & Wendy L. Martinek, 2004. "Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals," American Journal of Political Science, John Wiley & Sons, vol. 48(1), pages 123-137, January.
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    Cited by:

    1. Felipe de Mendonça Lopes, 2019. "Dissent Aversion and Sequential Voting in the Brazilian Supreme Court," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 16(4), pages 933-954, December.
    2. Muro, Sergio & Amaral-Garcia, Sofia & Chehtman, Alejandro & Garoupa, Nuno, 2020. "Exploring dissent in the Supreme Court of Argentina," International Review of Law and Economics, Elsevier, vol. 63(C).
    3. Nuno Garoupa & Laura Salamero-Teixidó & Adrián Segura, 2022. "Disagreeing in private or dissenting in public: an empirical exploration of possible motivations," European Journal of Law and Economics, Springer, vol. 53(2), pages 147-173, April.
    4. Garoupa, Nuno & Grajzl, Peter, 2020. "Spurred by legal tradition or contextual politics? Lessons about judicial dissent from Slovenia and Croatia," International Review of Law and Economics, Elsevier, vol. 63(C).

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