Judicial Disharmony: A Study of Dissent

32 Pages Posted: 15 Oct 2014 Last revised: 30 Dec 2014

See all articles by Anthony Niblett

Anthony Niblett

University of Toronto - Faculty of Law; Vector Institute for Artificial Intelligence

Albert Yoon

University of Toronto - Faculty of Law

Date Written: December 19, 2014

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.

Keywords: Dissent, Precedent, Citations, Judicial Behavior, Court of Appeals, Supreme Court, Judges, Majority, Written Opinions

JEL Classification: K4, K40, K41

Suggested Citation

Niblett, Anthony and Yoon, Albert, Judicial Disharmony: A Study of Dissent (December 19, 2014). Available at SSRN: https://ssrn.com/abstract=2509465 or http://dx.doi.org/10.2139/ssrn.2509465

Anthony Niblett (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Vector Institute for Artificial Intelligence ( email )

Albert Yoon

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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