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2008 Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging Tracey E. George
Albert H. Yoon
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Recommended Citation Tracey E. George and Albert H. Yoon, Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging, 61 Vanderbilt Law Review. 1 (2008) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/869
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Citation: 61 Vand. L. Rev. 1 2008
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This work was originally published in 61 Vand. L. Rev. 1 2008 VANDERBILT LAW REVIEW
VOLUME 61 JANUARY 2008 NUMBER 1
Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging
Tracey E. George* & Albert H. Yoon**
I. INCENTIVES ON THE U.S. COURTS OF APPEALS ...... 9 A. The Attitudinal Model ...... 10 1. The Role of Policy Preferences in Votes on the Merits ...... 11 2. The Role of Policy Preferences in Non-Merits Decisions ...... 16 B. The Managerial Judging Model ...... 19 II. LEADERSHIP ON THE LOWER FEDERAL COURTS ...... 20 A. The Creation and Selection of Chief Judges ...... 23 B. The Real and PotentialPower of Chief Judges ...... 28 1. The Chief Judge on a Panel ...... 28 2. Formal Authority ...... 29 3. Informal Powers ...... 33
Professor of Law, Vanderbilt University. Professor of Law, Northwestern University. We presented this paper at the 2006 Law & Society Association Annual Meeting, the Second Annual Conference on Empirical Legal Studies, and at a Marquette University faculty workshop. We thank Jason Czarnezki, Shari Diamond, Brian Fitzpatrick, John Goldberg, Chris Guthrie, Stefanie Lindquist, Richard McAdams, Richard Nagareda, Erin O'Hara, Mary Rose, Jeff Segal, and Suzanna Sherry for helpful comments. Jessica Friedman, Linda Leibfarth, and Donya Mir provided excellent research assistance. We owe a large debt to Vanderbilt Law School reference librarian Janet Hirt, who assisted us in tracking down elusive data on many of the judges in this study, and to the federal court staff members who assisted us.
HeinOnline -- 61 Vand. L. Rev. 1 2008 2 VANDERBILT LAW REVIEW [Vol. 61:1:1
III. A STRATEGIC DEPARTURE THEORY OF CHIEF JUDGE TENURE ...... 35 IV . EM PIRICAL ANALYSIS ...... 40 A . The Findings...... 41 B . C ircuit Splits ...... 47 C. ManagerialJudging Effects ...... 48 C O N CLU SIO N ...... 50
Grutter v. Bollinger is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.1 Grutter's procedural history is nearly as noteworthy as its substantive holding. The University of Michigan Law School, after losing in federal district court, 2 appealed t