Fear of Reversal as an Explanation of Lower Court Compliance

David E. Klein · Robert J. Hume

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Judicial and Constitutional Studies Legal processes and jurisprudence Law, Economics, and Judicial Systems

Abstract

Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation—that compliance can be attributed to judges' fear of having their decisions reversed—through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance.

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References

1988Organized Interests and Agenda Setting in the U.S. Supreme Court 1998Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals 1994The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions 1984Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981 1997The Puzzle of Judicial Behavior 2002Making Law in the United States Courts of Appeals 1992Integrating Alternative Approaches to the Study of Judicial Voting: Obscenity Cases in the U.S. Courts of Appeals 2001What's Law Got to Do with It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making

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