GAMING OR EFFICIENCY? RIVAL HYPOTHESES OF PANEL SETTING
Discretion in the setting of panels may influence how a court decides cases for good or ill. As we saw, chief justices or presidents may use their panel selection power in two principal ways. The first is to optimize the allocation of the court’s resources such as by increasing the number of appeals the court can hear or assigning judges to cases in their areas of expertise. A second way is for the chief justice or president to strategically use the panel-selection power to promote her preferred outcomes on appeals. We can label these two approaches to panel selection as “managerial” or “strategic,” respectively. We start with the managerial approach. For the moment we will leave aside the question of how a judge is affected by who else is on the panel, which are termed “panel effects” We will see in the next chapter that who a judge sits with matters. Yet it is helpful at present while discussing panel selection to assume that there are no panel effects.
-  For a more thorough explanation of the different types of approaches that a chiefjustice cantake toward panel selection, see Benjamin Alarie, Andrew Green & Edward Iacobucci, “PanelSelections on High Courts” (2015) 65:4 University of Toronto Law Journal 335 [Alarie et al.,“Panel Selections”].