Open Access. Powered by Scholars. Published by Universities.®
Social and Behavioral Sciences Commons™
Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 6 of 6
Full-Text Articles in Social and Behavioral Sciences
Rethinking The Principal-Agent Theory Of Judging, Rafael I. Pardo, Jonathan Remy Nash
Rethinking The Principal-Agent Theory Of Judging, Rafael I. Pardo, Jonathan Remy Nash
Scholarship@WashULaw
This Essay offers new insights into understanding the relationship between higher and lower courts and responds to the extant literature that has characterized the relationship as one involving a principal and an agent. We challenge the underpinnings of the principal-agent understanding of judicial hierarchies and identify problems with the theory’s applicability in this context. While principals ordinarily select their agents, higher court judges usually do not select lower court judges. Moreover, while lower court judges may cast votes with an eye to the possibility of elevation to a higher court, the higher court judges who review the lower court’s decisions …
Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash
Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash
Scholarship@WashULaw
This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …
Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim
Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim
Scholarship@WashULaw
Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit …
An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash
An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash
Scholarship@WashULaw
Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other law-finding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges. The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization. This Paper adds a new dimension by presenting results from an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides certain …
Lower Court Discretion, Pauline Kim
Lower Court Discretion, Pauline Kim
Scholarship@WashULaw
Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must implement that policy faithfully. The law is a signal - the means by which the Court communicates its preferences. This article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This article advances a more nuanced account of how law shapes the decision-making environment, one that focuses on …
Eliminating The Judicial Function In Consumer Bankruptcy, Rafael I. Pardo
Eliminating The Judicial Function In Consumer Bankruptcy, Rafael I. Pardo
Scholarship@WashULaw
The centerpiece of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has been the means test, a formulaic statutory directive pursuant to which courts are to presume abuse of the bankruptcy system by Chapter 7 debtors who have an ability to repay past debts with future income. This Essay provides a new insight into means testing by arguing that, more than anything else, it has brought about a significant change in the institutional design of bankruptcy courts: namely, the increased blurring of administrative and judicial functions. The Essay concludes that this development should be cause for concern as …