We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative history by legislators who share political affiliation with the colleagues and superiors of the authoring judge than legislators sharing the same political party affiliation as the authoring judge himself. These findings are consistent generally with positive political and contextual theories of judicial persuasion, collegiality, and strategic decision making.
GW Paper Series
GWU Legal Studies Research Paper No. 2013-84; GWU Law School Public Law Research Paper No. 2013-84
Michael Abramowicz & Emerson H. Tiller, Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decision Making, 38 J. LEGAL STUD. 419 (2009)