Left, Right, and Center: Strategic Information Acquisition and Diversity in Judicial Panels

Left, Right, and Center: Strategic Information Acquisition and Diversity in Judicial Panels Matthew Spitzer y & Eric Talley z March 24, 2011 Abstract In the last …fteen years, numerous studies of multi-member courts have documented a phenomenon popularly known as “panel e¤ects.”Two provocative …ndings from this literature are: (1) the inclusion of (non- pivotal) members from outside the dominant ideology on the panel pre- dicts higher reversal rates of administrative agencies that are “like minded” with the panel’ median voter; and (2) when mixed panels do not reverse, s they frequently issue unanimous decisions. The apparently moderating ef- fects of mixed panels both pose a challenge to conventional median voter theories and call into question the predictability and legitimacy of judicial review. Accordingly, many scholars have o¤ered their own explanation for panel e¤ects (including collegiality, dissent aversion, deliberation e¤ects, whistle-blowing, and others). In this paper, we propose a general model that (among other things) predicts panel e¤ects as a byproduct of strategic information acquisition. The kernel of our argument is that ideologically extreme, non-pivotal members of deliberative panels have incentives to engage in costly information production in cases where pivotal members would rationally choose not to do so. As a result, diverse panel compo- sitions can catalyze distinct forms of information production producing equilibrium panel e¤ects. Our informational account – if correct – has normative implications for the composition of judicial panels in particular and for deliberative groups more generally. (First Version: May 6, 2009; Submitted for Publication: Aug. 23, 2010). Thanks to Bernard Black, Charles Cameron, Steve Choi, Robert Cooter, John de Figueiredo, Rui de Figueiredo, Dan Farber, Joshua Gans, Jake Gersen, Prasad Krishnamurthy, Tracy Lewis, Justin McCrary, John Morgan, Anne Joseph O’ Connell, Kevin Quinn, Mark Ramseyer, Suzanne Scotchmer, Pablo Spiller, Matthew Stephenson, Cass Sunstein, Emerson Tiller, Abe Wickelgren, Jonathan Wiener, and seminar participants at the Americal Law and Economics Association meetings, Berkeley, Chicago, Northwestern, Melbourne Business School, Texas, Vanderbilt, and the Duke-North Carolina Triangle Law and Economics Conference for com- ments and discussions. We also thank two anonymous referees for constructive suggestions. Sam Houshower, Teddy Maghee, and Daniel Mitchell provided excellent research assistance on this project. All errors are ours. y University of Texas. Email: mspitzer@law.utexas.edu z University of California, Berkeley. Email: etalley@law.berkeley.edu.