Search

The quest for empirical evidence of strategic judicial behavior has produced mixed results. This study finds such evidence in the decisions made while crafting an opinion. Central to any opinion is which precedents are cited and whether their scope is limited (negative treatment) or expanded (positive treatment). I look for evidence of strategic anticipation of en banc review in these decisions using an original dataset of published search and seizure cases from the U.S. Courts of Appeals from 1953 to 2010. A panel is less likely to negatively treat a precedent with which the full circuit is more closely aligned. Circuit preferences also have an effect on citation itself, but only when the panel is at least moderately aligned with a precedent. Moreover, the panel's own ideology is only a significant predictor of citation when the full circuit is favorably disposed toward a particular precedent. [ABSTRACT FROM AUTHOR]

The article presents findings from the study that was carried out to ascertain the meaning of legal citations by examining their use in state wrongful discharge precedent cases and by distinguishing between strong and weak forms of citation in the U.S. The principal question considered is whether or to what extent, citations in these cases conform to pattern consistent with inter-court influence on decision making, or whether the pattern is more in keeping with a primary function of legitimation. The study findings suggest that legitimation as a primary motive for use of citations includes the greater breadth and frequency of citations in situations where acceptability of decisions is more in question, particularly when new legal doctrines are being adopted and those doctrines are relatively far-reaching. The view of citations as substantively meaningful receives support from findings that courts producing longer opinions were more likely to be cited and that courts sometimes discuss other states' cases at length and directly attribute influence to them.