DECISION MAKING IN THE U.S. COURTS OF APPEALS

Vol. 17 No. 11 (November, 2007) pp.840-842

DECISION MAKING IN THE U.S. COURTS OF APPEALS, by Frank B. Cross. Palo Alto, CA: Stanford University Press, 2007. 264pp. Cloth. $60.00. ISBN: 9780804753661. Paper. $22.95. ISBN: 9780804757133.

Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: puro [at] slu.edu.

Frank Cross, Professor of Law at the University of Texas Law School and a chaired professor at the University of Texas Businees School, broadly considers factors explaining judges’ DECISION MAKING ON U.S. CIRCUIT COURTS OF APPEALS. The Circuit Courts are the first-level federal appellate court which are structurally located between United States District Courts (trial level) and the United States Supreme Court (additional appellate level). Circuit Courts play a major role in developing federal appellate law and establish federal legal policy for regional geographical areas within the United States.

This book explores empirical and theoretical analyses to capture main dimensions of circuit courts’ judicial decisions and to spur future research. Cross’ varied analyses develop multidisciplinary perspectives to coordinate legal and social science scholars’ understanding of circuit court judges’ decision making. No single theoretical model is developed, and each of the eight chapters considers slices of different theoretical and empirical approaches, including attitudinal, strategic, institutional and judicial background models. He recognizes limits of the explanatory power of these and other models.

Cross applies existing empirical research concerning judicial decision making to analyze circuit court decision making. Because a substantial part of this earlier research is based upon the US Supreme Court, application to the circuit court level is often difficult. His analysis involves broad application of two primary circuit court databases: the US Courts of Appeals Database (Donald Songer) and Attributes of US Appeals Court Judges (Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski). A significant part of this book draws upon Cross’ additional data to create new variables for novel analysis of circuit court decision making. Scholars who want to pursue additional investigations along lines suggested by Cross are directed to Susan Haire and Ashlyn Kuersten’s July 2007 release of a 1997-2002 update to Songer’s original U.S. Courts of Appeals Database (1925-1996). Scholars and students can download this information through the Ulmer Project’s website: http://www.as.uky.edu/polsci/ulmerproject/appctdata.htm .

Cross’ multifaceted study emphasizes basic statistics and regression analysis, and he provides careful explanation of tables and charts. He generally favors a parsimonious interpretation of results concerning the magnitude of relationships. This type of interpretation is particularly applied to new variables, [*841] such as “affirmative deference” of circuit court decisions to those of lower courts and “total ideology” of full three-judge panels rather than the ideology of each judge on the panel. Cross designed this book for a broad readership with particular attention to legal and political science professionals. Advanced undergraduate students, social science graduate students and law students will find it useful and accessible.

A key element in Cross’ analysis is that law plays a significant role in circuit judges’ decision making and opinion writing. He explains that legal doctrine and legal threshold requirements, such as jurisdiction, standing and precedential effect of certain types of cases, are better determinants of outcomes than single variables, such as judicial ideology. He criticizes existing empirical research for an inability “to capture potential effects of the law on decision making” (p.39). Admittedly, he finds there are frequent difficulties in capturing a single legal variable for quantitative analysis. His analysis leaves the reader with caution about interaction among variables relevant to law and circuit court decision making.

Two interesting and innovative aspects of the book are its exploration of the effects of panel composition and circuit court judges’ strategies to affect current Supreme Court decision making. Cross’ distinctive assessment of ideological and legal influences on panel members creates new paths to understand decisional outcomes on circuit court panels – e.g., interactions between an ideologically extreme judge and other judges on a panel. Cross tests hypotheses concerning whether ideological preferences of a panel member’s colleagues had as strong an effect on his or her votes as the panel member’s own ideological preferences. A number of indirect measures show that panel effects can be an important determinant of a judge’s vote and eventual case outcomes. After initial ventures, he concludes that “[f]uture research needs to account for the panel effects, rather than relying on the vote of the individual or the panel’s median voter” (p.177). Such hypotheses are a reminder that how law interacts with ideology remains an underlying question for collegial court decision making.

Cross’ analysis suggests complicated and elaborate strategies employed by circuit judges in the attempt to manipulate the Supreme Court’s docket and decisions. He explores different degrees of circuit responsiveness to Supreme Court preferences and how shifting Supreme Court preferences are associated with circuit court outcomes. This analysis is contrary to conventional hypotheses that “circuit courts passively moderate their rulings to conform to the preferences of the Supreme Court” (p.122). Cross provides good analysis of theoretical problems of conducting research into risk of reversal theories. Further attention to constraints imposed by complex institutional structures, such as those involved in judicial hierarchy, could potentially lead to sophisticated understanding of circuit decisions and outcomes.

Cross provides useful and novel integration of legal, political science, and economic research to understand circuit court decision making. His new avenues for empirical analysis, within his admittedly limited depth of treatment, advances his goal of initiating [*842] future theoretical and empirical research by legal and social science scholars. Many of his findings will have great utility for those seeking determinants of circuit court and other collegial decision making.

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