Judicial whistleblowing dissents significantly influence en banc review decisions in US Courts of Appeals. A formal signaling theory predicts that these dissents interact with judicial preferences to trigger circuit-level scrutiny and potential reversal, especially when a three-judge panel's non-compliance likelihood is highest.
This study utilizes original data alongside existing sources to empirically test this theory. It demonstrates two key findings: first, dissenting against one's own preference increases the odds of en banc review; second, dissents are most impactful in scenarios where a panel is statistically more likely not to comply with precedent or norms.
The results confirm that judicial whistleblowers play a crucial role in helping appellate courts prioritize cases effectively. This mechanism ensures important legal principles receive heightened scrutiny even within hierarchical court structures.
| Signaling and Counter-Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review was authored by Deborah Beim, Alexander Hirsch and Jonathan Kastellec. It was published by Wiley in AJPS in 2016. |
