THE AFFIRMANCE EFFECT
The American federal judicial system comprises thirteen intermediate appellate courts with 179 active judges and one Supreme Court with nine Justices These appellate courts manage the majority of the system's appellate cases, reviewing over 27,000 trial court decisions across twelve general jurisdictions and one specialized jurisdiction in the previous year In stark contrast, the Supreme Court reviewed less than eighty cases during the October 2003 Term, granting a writ in only a small fraction of those requests When the Supreme Court does hear a case, the likelihood of a favorable outcome is low, with only 28% of cases affirmed, compared to the circuit courts, which affirmed nearly 91% of the rulings they reviewed.
CIRCUIT COURT CASELOAD AND AFFIRMANCE RATES: 1946-2003
10 See 2003 Din ADMIN OFF U.S CTS ANN REP 34 tbl.S-1 [hereinafter ANNUAL REPORT], available at http://www.uscourts.gov/judbus2OO3/tables/sl.pdf (last visited Oct.
11 Goldstein, 2003 Term Statistics, supra note 2, at 3046.
13 ANNUAL REPORT, supra note 10, at 27 tbl.B-5, 34 tbl.S-1 (presenting data for the October 2002 Term), available at http://www.uscourts.gov/judbus2003/contents.html (last visited Oct 14, 2004).
SUPREME COURT CASELOAD AND AFFIRMANCE RATES: 1946-2003 TERMS
The Supreme Court's affirmance rate remained fairly steady dur- ing the last half-century, dipping below 50% only four times since the
Since 1946, the circuit rate has consistently increased, rising from 72% in 1945 to 82% in 1975, and reaching nearly 91% by 2003 Figure 3 illustrates both rates on a single graph, emphasizing the notable differences between them.
FIGURE 3 AFFIRMANCE RATES: SUPREME COURT AND CIRCUIT COURTS
- Supreme Court Affirmance Rate -11- Courts of Appeals Affirmance Rate,
The courts of appeals' treatment of lower court decisions reveals interesting characteristics when subjected to closer scrutiny First,
The rising affirmance rate in circuit courts correlates significantly with increasing caseloads, as evidenced by a Pearson correlation of 95 Specifically, a 9,500-case increase in caseload leads to approximately a 6% rise in the affirmance rate Although this may seem modest, it is important to note that the circuit docket has expanded over tenfold since 1946, while the affirmance rate has not even doubled This suggests a complex relationship between these trends, indicating that either one may influence the other, or both could stem from external factors These statistics provide an initial insight into the potential dynamics at play.
The circuit affirmance rate also appears related to whether the ruling is published 1 6 Historically, practically all circuit opinions were printed in the Federal Reporter 7 But, beginning in the 1960s and
The Pearson correlation is utilized as it serves as a standardized measure, making it independent of measurement units In this analysis, caseload is quantified in individual cases, whereas the affirmance rate is expressed in percentage points.
15 That is, a one standard deviation increase in caseload is associated with a 95 standard deviation increase in reversal rate.
16 Cf Keith H Beyler, Selective Publication Rules: An Empirical Study, 21 LOY U. CHI L.J 1, 31 (1989) (reporting the same finding for Illinois state appellate courts).
In 1964, the United States Judicial Conference advised that courts of appeals should publish only opinions that hold significant precedential value, as noted in the 1964 Administrative Office of U.S Courts Annual Report.
Since 1973, circuit courts have increasingly issued unpublished opinions, with the number rising each year An analysis of affirmance rates in published opinions from 1946 to 1988, conducted by Songer, Sheehan, and Haire, reveals that while the affirmance rate in published opinions remains consistent when publication was common (1946-1960), it diverges as the frequency of published opinions declines Although data on affirmance rates for unpublished opinions is lacking, it can be inferred that these rates are significantly higher when compared to the overall merits decisions.
RATE OF AFFIRMANCE IN PUBLISHED OPINIONS COMPARED TO ALL
Courts of appeals have shown a consistent trend of being less favorable towards criminal appellants compared to civil appellants This discrepancy may stem from the lower costs associated with appeals for convicted defendants than for unsuccessful civil litigants Since 1946, the affirmation rate for criminal appeals has consistently surpassed that of civil appeals, highlighting this ongoing pattern.
OF THE JUDICIAL CONFERENCE OF THE UNITED STATES Prior to that time, the Federal Re- porter contained every opinion.
In 1973, the United States Judicial Conference mandated that judicial circuits create local rules for selective publication of opinions, as outlined by the Advisory Council on Appellate Justice.
19 See William L Reynolds & William M Richman, An Evaluation of Limited Publi- cation in the United States Courts of Appeals: The Price of Reform, 48 U CHI L REV 573,
In 1981, a study revealed a publication rate of 38.3% for decisions made in 1979, highlighting concerns about the future of Federal Courts of Appeals Martha J Dragich raises critical questions about whether the decline in published opinions undermines the courts' ability to explain and justify their judicial decisions, suggesting that this trend may pose a greater threat than the potential consequences of increased publication.
20 See DONALD R SONGER ET AL., CONTINUITY AND CHANGE ON THE UNITED STATES COURTS OF APPEALS 105 tbl.5.1 (2000).
The observed difference could stem from a limited number of unpublished opinions or, more plausibly, from errors such as the standard error in the Songer sample or inaccuracies in the clerk's reported population figures, or potentially a combination of both factors.
The published opinion number is derived from the U.S Courts of Appeals Data Base sample, as detailed by Songer et al in their research, which reports the reversal rate within this sample of published opinions.
The affirmance rate for circuit court cases ranges from approximately 87% to 99%, indicating a high likelihood of upholding decisions Although the proportion of criminal cases on the docket has fluctuated over time, particularly spiking after significant defendant's rights rulings by the Warren Court, the correlation between the number of criminal cases and the affirmance rate is only weakly positive Notably, the high affirmance rate persists even in civil cases, published cases, and during years with reduced caseloads, suggesting a consistent trend in the courts' decisions.
THEORETICAL ACCOUNTS OF THE AFFIRMANCE EFFECT
The high affirmance rate in the U.S Courts of Appeals presents a puzzling scenario, particularly when analyzed through the "selection model" of litigation behavior According to George Priest and Benjamin Klein, litigants in the civil justice system act as rational actors aiming to maximize their outcomes In deciding whether to proceed with adjudication or settle a dispute, litigants weigh the expected value of going to court against the actual value of a settlement, leading most cases to settle to save costs Disputes that do not settle often arise from "divergent expectations" regarding potential court outcomes, particularly in close cases Given the lack of bias in close cases, selection theory suggests that the affirmance rate in appellate courts should approximate 50%, as explained by Kevin Clermont and Ted Eisenberg.
Case-selection theory suggests that appeals should function similarly to trials, where cases favoring either the appellant or the appellee are likely to settle quickly, as both parties can reduce costs by leveraging their comprehensive understanding of the case Conversely, appeals that are closely aligned with the relevant decisional criteria tend to remain unresolved, as the parties may find it challenging to reach an agreement.
For affirmance rates spanning from 1946 to 1984, consult Table B-1 in the Annual Reports of the Director of the Administrative Office of the United States Courts from that era For rates between 1985 and 2003, refer to Table B-5 in the corresponding Annual Reports Additional details can be found in the cited source.
1997 to 2003 are also available on the World Wide Web at http://www.uscourts.gov/ judbususc.judbus.html (last visited Oct 19, 2004).
24 See generally George L Priest & Benjamin Klein, The Selection of Disputes for
25 Frank Cross refers to selection theory and others of its type as "litigant-driven" theories of decisionmaking Frank B Cross, Decisionmaking in the U.S Circuit Courts of
26 Priest & Klein, supra note 24, at 4.
HeinOnline suggests that there may be substantial disagreement regarding predicted outcomes in appeals, particularly those that are complex and involve differing expectations These appeals tend to balance around the decisional criterion, irrespective of its position or the distribution of cases Consequently, case selection should result in a mix of appeals that show a moderate affirmance rate Under simplified assumptions, case-selection theory could even imply a 50% affirmance rate.
The affirmance rate in appellate courts for civil cases exceeds 50%, suggesting that selection theory does not adequately explain this phenomenon Insights from political science and psychology may provide a deeper understanding of these trends.
Political Science Rational-Actor Accounts
Political Behavioralism and the Attitudinal Model
The dominant political science model of judicial behavior is the at- titudinal model, which builds on the early work of Hermann Pritch-
27 Clermont & Eisenberg, supra note 4, at 150-51 (footnote omitted).
28 See id at 150 (reporting an affirmance rate in federal civil cases of about 80%); see also Kevin M Clermont & Theodore Eisenberg, Anti-Plaintiff Bias in the Federal Appellate Courts, 84 JUDICATURE 128 (2000) [hereinafter Clermont & Eisenberg, Anti-Plaintiff Bias];
Kevin M Clermont & Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U ILL L REv 947.
29 William H Riker, Political Science and Rational Choice, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 163, 172 (James E Alt & Kenneth A Shepsle eds., 1990). Riker is considered by many to be the father of positive political theory See generally WILLIAM H RIKER, LIBERALISM AGAINST POPULIsM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (1982).
The study of judicial politics has been significantly advanced by Pritchett and Schubert, who emphasized individual voting behavior The attitudinal model has transitioned from a psychology-based approach to a rational-choice framework, suggesting that judges are goal-oriented actors aiming to maximize their sincere policy preferences This model contends that judicial opinions may not accurately reflect judges' true attitudes due to incentives to conceal their objectives or a lack of awareness regarding the motivations behind their decisions Attitudinal studies have employed various measures, including judges' backgrounds, the political affiliation of the appointing President, media evaluations, and previous rulings, to assess judicial attitudes.
30 See generally C HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND VALUES, 1937-1947 (1948) Pritchett used simple statistics to evaluate systematically microlevel voting behavior on the Court between 1937 and 1947. For example, he identified distinct liberal and conservative voting blocs through agreement scores (which reflect the percentage rate at which a given Justice votes with another Jus- tice) and revealed ideological preferences by counting votes on particular issues Pritchett did not present an explanatory model of Supreme Court decisionmaking, but he did pro- vide the basis for the development of the behavioral study of the Supreme Court.
31 See generally GLENDON SCHUBERT, THE JUDICIAL MIND: THE ATTITUDES AND IDEOLOGIES OF SUPREME COURT JUSTICES, 1946-1963 (1965) (drawing on the work of social psychologists, Schubert was the first to propose a model of judicial decisionmaking based on Justices' attitudes) Stuart Nagel and John Sprague also wrote groundbreaking work on the subject shortly after the publication of The Judicial Mind See generally STUART S. NAGEL, THE LEGAL PROCESS FROM A BEHAVIORAL PERSPECTIVE (1969); JOHN D SPRAGUE, VOTING PATTERNS OF THE UNITED STATES SUPREME COURT (1968).
32 See generally DAVID W ROHDE & HAROLD J SPAETH, SUPREME COURT DECISION MAKING (1976) (expanding on Schubert's model with a construct of attitudes built on the work of psychologist Milton Rokeach).
33 See generally JEFFREY A SEGAL & HAROLD J SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993) (presenting the best statement and defense of attitudinal theory); JEFFREY A SEGAL & HAROLD J SPAETH, THE SUPREME COURT AND THE AITITUDINAL MODEL REVISITED (2002).
34 Attitudinal scholars have considered the role of legal doctrine as a limiting or guiding force in decisionmaking See, e.g., Tracey E George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM POL SCI REV 323 (1992); Jeffrey A Segal,
Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-
35 See, e.g., Sheldon Goldman, Voting Behavior on the United States Courts of Ap- peals, 1961-1964, 60 AM POL SCi REV 374 (1966); Sheldon Goldman, Voting Behavior on the United States Courts of Appeals Revisited, 69 AM POL SCI REV 491 (1975) (using a variety of social background variables including age, gender, race, prior employment, relig- ion, and political party to explain circuit judges' votes); Andrew D Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S Su- preme Court, 1953-1999, 10 POL ANALYSIS 134 (2002) (estimating ideal points for the Jus- tices on the U.S Supreme Court using voting data); Jeffrey A Segal & Albert D Cover, Ideological Values and the Votes of U.S Supreme Court Justices, 83 AM POL SCI REV 557
In 1989, a study measured judicial ideology by analyzing editorials about Supreme Court candidates following presidential nominations and prior to Senate confirmations This research was further expanded in 1995 by Jeffrey A Segal and colleagues, who revisited the ideological values influencing the voting patterns of U.S Supreme Court Justices, incorporating additional data from the Bush and Roosevelt administrations.
Appellate judges aiming to align their decisions with personal policy preferences would typically affirm every agreeable lower court ruling However, this expectation contradicts the observed differences in affirmance rates between the Supreme Court and appellate courts, suggesting that circuit and district judges may agree more often than Supreme Court Justices do If this is accurate, it indicates that Supreme Court Justices likely disagree with district judges as frequently as they do with circuit judges, given the apparent consensus among lower court judges Additionally, evidence suggests that the Supreme Court tends to reverse circuit court decisions that have overturned district court rulings.
The simplistic attitudinal account of the Supreme Court's decision-making is inadequate; a more comprehensive explanation can be developed by examining each institution's discretion over its cases The Court's low affirmance rate can be attributed to its agenda-setting power, as Justices have discretionary jurisdiction and select most of the cases they review, except for a few original disputes This model suggests that the Court is more inclined to grant certiorari for cases where lower court decisions diverge from the current majority's ideology, leading to a higher likelihood of reversal rather than affirmation Ultimately, the attitudinal model posits that ideologically driven Justices are more prone to review and overturn inconsistent lower court opinions.
36 See, e.g., Gregory A Caldeira & John R Wright, Organized Interests and Agenda Setting in the U.S Supreme Court, 82 AM POL SCI REV 1109 (1988).
37 See, e.g., Virginia C Armstrong & Charles A Johnson, Certiorari Decisions by the Warren & Burger Courts: Is Cue Theory Time Bound?, 15 POLITY 141, 149 (1982) (finding that the Burger Court was more likely to grant certiorari to liberal appeals from court rul- ings in civil liberties and economic liberties cases, and the Warren Court was more likely to grant certiorari in conservative economic liberties cases, but not in conservative civil lib- erties disputes); Robert L Boucher, Jr & Jeffrey A Segal, Supreme Court Justices as Stra- tegic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court, 57 J. POL 824, 833 (1995) (examining certiorari and merits votes of Vinson Court Justices from
Between 1946 and 1952, research indicated that Justices who supported reversing lower court decisions were significantly more inclined to vote for certiorari compared to those who voted to affirm Brenner and Krol's study, analyzing cases from the Vinson, Warren, and Burger Courts, found that Justices favoring certiorari were more likely to reverse decisions, identifying this pattern as an "error correcting strategy."
The recent reduction in the Court's caseload may be attributed to the grant-to-reverse effect, as the conservative majority under the Rehnquist Court finds less need to review and overturn conservative decisions from the courts of appeals With seven of the nine Justices appointed by Republican Presidents since 1994, the Court's ideological alignment with the circuit courts has intensified Consequently, while the Court continues to reverse more cases than it affirms, it is hearing fewer cases overall due to this alignment.
The high affirmance rate in the courts of appeals can be attributed to their lack of agenda control and the ideological alignment between upper and lower court judges In the federal system, courts of appeals are required to hear all properly filed appeals from district courts, leading to a consistent decision-making pattern This phenomenon may be explained by shared policy preferences between circuit and district judges, particularly when analyzing the proportion of Republican appointees in both courts The data indicates that the ratio of Republican to Democratic appointees remains similar across the courts, a trend expected to persist as presidents appoint judges at comparable rates.
38 Frank B Cross, The Justices of Strategy, 48 DUKE L.J 511, 557-61 (1998) (review- ing LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998)).
39 See Sheldon Goldman, Judicial Selection Under Clinton: A Midterm Examination,
New Institutionalism and the Strategic Model
Judicial scholars are increasingly examining how institutional factors impact judicial decisions, aligning with the political science movement known as "new institutionalism." Strategic theories of judicial behavior suggest that judges aim to achieve specific policy goals, but they must also take into account the preferences and potential actions of other key actors to effectively realize their policy objectives.
42 We calculated the linear association between the two variables using a simple cor- relation coefficient We did not use the standardized coefficient (Pearson) because the two variables share the same units of measurement.
43 See NAT'L CTR FOR STATE COURTS, STATE COURT CASELOAD STATISTICS, 2003, at 7-59 (2004) (charting every state's judicial system), http://www.ncsconline.org/DResearch/ csp/2003_Files/2003_SCCS.html (last visited Oct 10, 2004).
44 See id.; NAT'L CTR FOR STATE COURTS, A Taxonomy of Appellate Court Organiza- tion, in CASELOAD HIGHLIGHTS: ExAMINING THE WORK OF THE STATE COURTS (1997).
45 See generally James G March & Johan P Olsen, The New Institutionalism: Or- ganizational Factors in Political Life, 78 AM POL SCI REV 734 (1984) (heralding a "re- turn" in political science to a consideration of the role of institutional structures and fea- tures in political behavior generally).
Leading proponents of the strategic model, including Forrest Maltzman, James Spriggs, and Paul Wahlbeck, argue that justices' decisions are influenced by the preferences and anticipated actions of other relevant actors This perspective highlights the significance of institutional factors, such as internal dynamics among colleagues on the Court and external pressures from Congress and the President.
To comprehend a judge's decision to affirm or reverse a ruling, it's essential to consider not just the ideological makeup of the circuit and district courts, but also the institutional dynamics at play A strategic analysis would view a panel's decision to affirm as the result of individual judges' votes, which are shaped by their fellow panel members, the circuit's overall influence, the actions of lower court judges, and potential responses from the Supreme Court.
A circuit judge must weigh the influence of higher judicial authorities when making decisions, particularly regarding the likelihood of a panel's ruling being reheard en banc or reviewed by the Supreme Court, especially if it involves reversing a lower court's decision Although the probability of such reviews is low, the potential consequences are significant, leading judges to be cautious and often vote against reversals.
Circuit judges weigh their authority over lower court judges, recognizing that the only disciplinary action available to appeals courts is reversal To deter district judges from shirking their responsibilities, frequent reversals may seem necessary; however, district judges often avoid reversals due to aspirations for promotion, shared perspectives with appeals courts, and the significant reputational and workload costs associated with being reversed Consequently, the incentives for district judges, understood by circuit judges, may reduce the necessity for frequent reversals.
46 See, e.g., LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 9-18 (1998) (presenting the leading strategic account of the Supreme Court); WALTER F MURPHY, ELEMENTS OF JUDICIAL STRATEGY 31-36 (1964) (offering one of the first judicial theories built on the collective nature of appellate courts).
47 See Forrest Maltzman et al., Strategy and Judicial Choice: New Institutionalist Approaches to Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES 43, 47 (Cornell W Clayton & Howard Gillman eds.,
1999) See generally FORREST MALTZMAN ET AL., CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME (2000).
The Supreme Court's low affirmance rate can be understood through a strategic lens, revealing a complex interplay between the Court and lower courts As the highest judicial authority, the Supreme Court aims to direct its agents, the lower courts, by utilizing certiorari review to oversee judges applying its doctrines This strategic approach suggests that the Court should reverse most reviewed decisions, which aligns with the attitudinal model However, the attitudinal explanation overlooks the "Rule of Four," where only four votes are needed to grant certiorari, potentially allowing a minority of Justices to seek review without the support to reverse a decision This dynamic could lead to a lower reversal rate in closely divided ideological contexts, yet the current Natural Court has maintained a consistent reversal rate despite being closely divided, as Justices strategically avoid voting for certiorari when the majority is likely to affirm, thereby reinforcing the lower court's position.
48 See Donald R Songer et al., The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM J POL SCI 673, 675 (1994) See generally Matt Spitzer & Eric Talley, Judicial Auditing, 29 J LEGAL STUD 649 (2000) (providing a framework for analyzing judicial monitoring of lower courts).
49 For a development and empirical test of this model, see Charles M Cameron et al., Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme
Court's Certiorari Decisions, 94 AM POL Sci REV 101 (2000).
50 Certiorari requires the vote of only four out of nine Justices, as opposed to the ma- jority vote required to decide a case For an account of this informal rule of Supreme Court practice, see DAVID M O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 207-20 (6th ed 2000).
51 EPSTEIN ET AL., supra note 2, at 224-25 tbl.3-4 (providing statistics for the 1994-
2001 Terms); Goldstein, 2002 Term Statistics, supra note 2, at 3079 (reporting five-to-four cases decided by the Supreme Court during the 2002 Term).
52 See Gregory A Caldeira et al., Sophisticated Voting and Gate-Keeping in the Su- preme Court, 15 J.L ECON & ORG 549, 570-71 (1999).
The strategic theory enhances the understanding of high circuit affirmance rates by examining the relationships within a circuit court and its interactions with other courts It employs a principal-agent framework, positioning the circuit court as the principal that delegates authority to a panel acting as its agent This panel is assigned specific cases and operates under constraints, including circuit precedent and informal norms When a panel breaches these expectations, the circuit can impose sanctions; however, monitoring is challenging due to information asymmetries, leading judges to rely on signals to identify potential overreach The primary formal control mechanism available to the circuit is the en banc review of the panel's decisions.
Circuit courts lack the Supreme Court's authority to choose which cases to review, resulting in most appeals courts focusing on routine evaluations of lower court decisions They typically apply deferential standards of review, such as abuse of discretion or plain error, reflecting a common expectation among the courts.
53 Cf PAUL MILGROM & JOHN ROBERTS, ECONOMICS, ORGANIZATION AND MANAGEMENT 132 (1992); GARY J MILLER, MANAGERIAL DILEMMAS: THE POLITICAL ECONOMY OF HIERARCHY 49-56 (1992) (explaining the principal's delegation of authority to an agent by way of an incomplete contract which sets forth general, rather than detailed, boundaries on the agent's authority).
Boundedly-Rational-Actor Account
Heuristics-and-Biases Program
The heuristics-and-biases program recognizes rational choice as a normative decision-making model but challenges its applicability as a positive model Based on experimental evidence, proponents argue that individuals frequently resort to heuristics rather than the intricate calculations suggested by rational-choice theory While they acknowledge that heuristics can be effective, they express concern over their potential to mislead decision-making Tversky and Kahneman highlight that individuals depend on a limited set of heuristic principles to simplify the complex tasks of probability assessment and value prediction.
In general, these heuristics are quite useful, but sometimes they lead to severe and systematic errors '7 4
Heuristics and biases theorists, particularly Tversky and Kahneman, have identified key decision-making heuristics, initially focusing on availability, representativeness, and anchoring More recently, Kahneman and Shane Frederick have expanded this framework to include the affect heuristic Despite these distinctions, many decision researchers broadly apply the term heuristics-and-biases to encompass a wider range of cognitive shortcuts used in decision-making.
74 Tversky & Kahneman, Heuristics, supra note 68, at 1124 More recently, Kahne- man and his collaborator, Shane Frederick, have explained heuristics as follows:
Judgment is influenced by heuristics when individuals evaluate a specific attribute of an object by using a more accessible characteristic, known as the heuristic attribute, that comes to mind easily.
Because the target attribute and the heuristic attribute are different, the substitution of one for the other inevitably introduces systematic biases.
Daniel Kahneman & Shane Frederick, Representativeness Revisited: Attribute Substitution in Intuitive Judgment, in HEURISTICS AND BIASES, supra note 68, at 49, 53.
75 See Tversky & Kahneman, Heuristics, supra note 68.
76 See Kahneman & Frederick, supra note 74, at 56 ("It has become evident that an affect heuristic should replace anchoring in the list of major general-purpose heuristics." (citation omitted)).
The concept of heuristics and biases in behavioral law and economics highlights the mental shortcuts individuals often rely on, illustrating their impact on decision-making processes within the legal field.
Two heuristics seem particularly likely to illuminate the affir- mance effect in the U.S Courts of Appeals: the status quo bias and the omission bias.
Status quo bias refers to the tendency of individuals to favor options that align with the current state of affairs rather than those that necessitate change Research demonstrates that consumers often choose the status quo option when faced with choices, such as selecting between a reliable but pricier utility and a less dependable, cheaper alternative This preference extends to various domains, including auto and health insurance plans, investment portfolios, and contractual agreements Additionally, status quo bias has been used to explain the incumbency effect in American politics, where the incumbent's policies are seen as the reference point, giving them an advantage over challengers due to the perception that losses are more significant than potential gains Overall, preferences are influenced by a natural inclination to maintain existing conditions.
77 See, e.g., HEURISTICS AND BIASES, supra note 68 (containing articles identifying and describing the operation of several different phenomena under the rubric of "heuristics and biases"); JUDGMENT UNDER UNCERTAINTY, supra note 68 (same).
78 See, e.g., Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN L REV 1471 (1998) (proposing behavioral law and economics as a field).
79 See, e.g., Jeffrey J Rachlinski, The Uncertain Psychological Case for Paternalism,
97 Nw U L REV 1165, 1170-73 (2003) (observing that legal scholars have focused primar- ily on the following five heuristics and biases: representativeness, availability, hindsight bias, anchoring, and self-serving bias).
80 See William Samuelson & Richard Zeckhauser, Status Quo Bias in Decision Mak- ing, 1 J RISK & UNCERTAINTY 7 (1988).
81 See Raymond S Hartman et al., Consumer Rationality and the Status Quo, 106 Q.J ECON 141, 158-60 (1991).
82 See Colin F Camerer, Prospect Theory in the Wild: Evidence from the Field, in CHOICES, VALUES, AND FRAMES 288, 294 (Daniel Kahneman & Amos Tversky eds., 2000).
84 Samuelson & Zeckhauser, supra note 79, at 12-19.
85 See Russell Korobkin, Inertia and Preference in Contract Negotiation: The Psycho- logical Power of Default Rules and Form Terms, 51 VAND L REV 1583, 1586 (1998); Rus- sell Korobkin, The Status Quo Bias and Contract Default Rules, 83 CORNELL L REV 608,
86 George A Quattrone & Amos Tversky, Contrasting Rational and Psychological Analyses of Political Choice, 82 AM POL SCI REV 719, 725-26 (1988).
HeinOnline 32 Fla St U L Rev 377 2004-2005 features of the task," including "which option is labeled 'status quo."'87
Judges often adhere to stare decisis due to the status quo bias, as highlighted by scholars Robert Prentice and Jonathan Koehler, who note that this practice is rooted in English tradition This adherence allows judges to accept established precedents without the need for extensive cognitive effort, as Oona Hathaway points out By relying on past decisions, judges can save considerable time and effort, enabling them to handle a greater volume of cases without needing to reevaluate every detail of prior rulings.
In appellate cases, the status quo is typically defined by a prior judgment favoring one party, which appellate judges may be reluctant to overturn due to the potential costs outweighing the benefits Reversing a lower court's decision imposes a "loss" on a previously victorious litigant, and psychological studies indicate that losses are more distressing than equivalent gains are appealing Judges, aware of this bias, may intuitively resist altering the outcome Additionally, overturning a decision requires judges to invest significant time and effort, making it easier to maintain the existing ruling.
87 Robert A Prentice & Jonathan J Koehler, A Normality Bias in Legal Decision Making, 88 CORNELL L REV 583, 598 (2003) (footnote omitted).
90 Oona A Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L REV 601, 626 (2001).
91 Cf Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263, 279 (1979) ("The aggravation that one experiences in losing a sum of money appears to be greater than the pleasure associated with gaining the same amount.") Research suggests that losses loom at least twice as large as equivalent gains See Chip Heath et al., Goals as Reference Points, 38 COGNITIVE PSYCHOL 79, 87
(1999) ("Studies of risky choice and riskless choice have presented converging evidence that losses are weighted approximately two times more than equivalent gains (cita- tions omitted)).
92 See Guthrie et al., supra note 73, at 794-97.
[the] past analys[is] and avoid rethinking every aspect of [the] deci- sion."93
The status quo bias significantly influences courts of appeals, particularly due to the concept of "accountability." Research by Phil Tetlock and Richard Boettger indicates that individuals aware of their accountability are more inclined to maintain the status quo compared to those who are not This is especially relevant for judges, who are accountable not only to the litigants whose outcomes they decide but also to their fellow panelists, the circuit as a whole, and the Supreme Court, amplifying the impact of the status quo bias in their decision-making processes.
Omission bias, closely linked to status quo bias, highlights that individuals often react more intensely to outcomes resulting from actions rather than inactions Research indicates that people perceive greater responsibility for the consequences of actions (commissions) than for the outcomes of inactions (omissions), leading to heightened feelings of regret associated with actions taken This phenomenon was explored through experiments conducted by Kahneman and Tversky, illustrating the psychological impact of decision-making.
Paul owns shares in Company A During the past year he consid- ered switching to stock in Company B, but he decided against it.
George realized he would have gained $1,200 more if he had invested in Company B's stock instead of his current investment Over the past year, he made the decision to switch from his shares in Company B to another company's stock.
A He now finds that he would have been better off by $1,200 if he had kept his stock in Company B Who feels more regret?
George and Paul obtained the same outcome, but most study partici- pants indicated that George would experience more regret than
93 Hathaway, supra note 90, at 626; see also Adrian Vermeule, The Judicial Power in the State (and Federal) Courts, 2000 SuP CT REV 357, 391 ("Judges, like other people, become habituated to and invested in the tasks, activities, and procedures they customar- ily and repetitively perform They overestimate the disruption that would arise from switching to new tasks or activities." (footnote omitted)).
94 Philip E Tetlock & Richard Boettger, Accountability Amplifies the Status Quo Ef- fect when Change Creates Victims, 7 J BEHAV DECISION MAKING 1 (1994).
95 See, e.g., JONATHAN BARON, THINKING AND DECIDING 400-01 (3d ed 2000); see also
Marcel Zeelenberg et al., Attributions of Responsibility and Affective Reactions to Decision
Outcomes, 104 ACTA PSYCHOLOGICA 303, 304 (2000) ("Outcomes achieved through action generally lead to more intense affective reactions than the same outcomes achieved through inaction." (citations omitted)).
96 Ilana Ritov & Jonathan Baron, Reluctance to Vaccinate: Omission Bias and Ambi- guity, 3 J BEHAV DECISION MAKING 263, 275 (1990).
97 Daniel Kahneman & Amos Tversky, The Psychology of Preferences, 246 SCI AM.
The omission bias leads individuals to prefer inaction over action, particularly in contexts like appellate courts where judges face a choice between affirming lower court decisions or reversing them This bias, combined with the status quo bias, suggests that judges are likely to favor affirmances, as it allows them to avoid the psychological repercussions of negative outcomes that stem from their own decisions Consequently, the legal system tends to favor omissions over commissions, reinforcing this tendency among judges.
Fast-and-Frugal-Heuristics Program
The fast-and-frugal heuristics program significantly diverges from rational-choice theory, rejecting it as both a positive and normative framework for decision-making Unlike the heuristics-and-biases program, which critiques rational-choice theory only on positive grounds, the fast-and-frugal approach emphasizes evaluating decision strategies based on their effectiveness in real-world situations rather than adherence to the logical and mathematical principles of rational-choice theory, as articulated by Gigerenzer and Peter Todd.
In many real-world situations, optimal strategies are often absent; however, this does not imply that performance criteria are nonexistent Instead, success can still be assessed through various measurable standards in these environments.
100 Prentice & Koehler, supra note 87, at 589-90 (footnotes omitted).
The fast-and-frugal approach to decision-making prioritizes practical heuristics over traditional coherence criteria, such as probability laws, as measures of rationality This perspective emphasizes the effectiveness of heuristics in real-world scenarios where optimal strategies may be unknown or impractical Gary Klein supports this view by arguing that optimization should not be considered the ultimate standard for decision-making.
The effectiveness of a heuristic is evaluated by comparing its performance against the actual demands of its environment, which involves making precise decisions quickly and with limited information This approach shifts the focus from traditional coherence criteria based on logic and probability to practical correspondence criteria that assess real-world decision-making performance.
Fast-and-frugal heuristics theorists challenge the rational-choice theory, arguing that it inaccurately depicts decision-making as a process governed by unrealistic rationality They criticize this model for portraying the mind as a supernatural entity with infinite reasoning capabilities and knowledge Instead, they advocate for a more psychologically plausible approach to understanding how individuals make decisions.
The program aims to explore human decision-making processes, contrasting them with idealized beings that possess infinite resources and knowledge The challenge lies in developing models of bounded rationality that reflect the actual cognitive, emotional, social, and behavioral capabilities of humans.
Fast-and-frugal heuristics theorists argue that individuals not only utilize heuristics in decision-making but should do so, as these methods lead to effective outcomes quickly and efficiently According to Gigerenzer and Todd, this approach emphasizes the benefits of streamlined decision processes.
While the heuristics-and-biases program views heuristics as obstacles to effective reasoning, suggesting that humans are less rational, we argue that fast and frugal heuristics actually empower us to make sensible decisions and adapt to our surroundings Without these heuristics, Homo sapiens would struggle to navigate their environment effectively.
The fast-and-frugal-heuristics theorists have identified several heuristics that individuals use in real-world environments, including
"ignorance-based" heuristics, 0 7 "one-reason" heuristics, 0 8 and heuris- tics that reflect social and cultural forces 0 9
102 Gigerenzer & Todd, supra note 67, at 22.
104 Gerd Gigerenzer, The Adaptive Toolbox, in ADAPTIVE TOOLBOX, supra note 69, at
106 Gigerenzer & Todd, supra note 67, at 29.
The recognition heuristic suggests that our ignorance can sometimes lead to smarter decision-making, as discussed by Daniel G Goldstein and Gerd Gigerenzer Additionally, research by Bernhard Borges and colleagues explores whether this heuristic can provide an advantage in stock market performance.
In the study of decision-making, researchers like Jean Czerlinski and Gerd Gigerenzer explore the effectiveness of simple heuristics Their work, particularly in "Simple Heuristics," highlights the "Take The Best" heuristic, demonstrating how relying on a single, strong reason can lead to successful outcomes Additionally, Laura Martignon and Ulrich Hoffrage investigate the rationale behind one-reason decision-making, providing insights into its practical applications.
The recognition heuristic is an ignorance-based heuristic used when selecting between options, where recognizing one option leads to the inference that it has higher value For instance, a study revealed that 100% of German students recognized San Diego, leading them to correctly identify it as the city with a larger population compared to San Antonio, which many did not recognize In contrast, only 62% of American students, who recognized both cities, could not apply the heuristic effectively Although ignorance-based heuristics may not clarify the affirmance effect due to judges' familiarity with cases, the recognition heuristic may illuminate the "repeat player" effect, where frequent court participants like corporations and governments tend to achieve better outcomes than those appearing only once.
Ecological rationality is explored through the lens of simple heuristics, as discussed in various studies Notably, Martignon and Laskey provide insights into Bayesian benchmarks that enhance the understanding of fast and frugal heuristics Additionally, Rieskamp and Hoffrage contribute to this discourse, emphasizing the importance of these decision-making strategies in ecological contexts.
When Do People Use Simple Heuristics, and How Can We Tell?, in SIMPLE HEURISTICS, su- pra note 67, at 141.
109 See generally ADAPTIVE TOOLBOX, supra note 69.
110 See generally Gigerenzer & Todd, supra note 67.
111 See Goldstein & Gigerenzer, supra note 107, at 57.
A study involving German and American participants revealed that individuals who utilized the recognition heuristic, investing in companies with recognizable names, created more successful stock portfolios over a six-month timeframe This finding, highlighted by Borges et al., suggests that during a bull market, such a strategy can yield disproportionately favorable outcomes.
The strong performance of recognition-based portfolios was achieved during a robust bull market, raising questions about their effectiveness in different market conditions, such as a declining bear market One possible reason for the recognition heuristic's success is its tendency to favor larger, well-known firms, which typically perform better in rising markets.
Research by Stanton Wheeler and others in "Do the 'Haves' Come Out Ahead?" examines the outcomes of cases in state supreme courts from 1870 to 1970, highlighting disparities in legal success Similarly, Marc Galanter's work, "Why the 'Haves' Come Out Ahead," speculates on the limitations of legal change and its impact on different societal groups These studies reveal the ongoing advantages enjoyed by those with greater resources in the legal system.