Getting Their Way: Bias and Deference to Lower Courts

I analyze a model of adjudication by a district judge who exerts effort to resolve a case, but whose decision may be appealed and reversed. The model makes two broad points. First, it provides an informational rationale for ex post deference that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can enable district judges to “get their way” more often. Some of the political implications are counterintuitive. Moderate judges sometimes have an incentive to obfuscate, despite being more closely aligned with an appellate court. Moreover, an appellate court’s ability to scrutinize district court decisions does not always make it better off. I relate these results to empirical findings showing district judges are largely compliant with appellate doctrine. The model’s results suggest that the judges adjudicating the cases in commonly used datasets may appear unusually compliant.

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