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Affiliation

If a judge is influenced more by affiliation than accuracy, she likely takes some signal of like-mindedness from the party, and at least in part bases her decision on that signal. The easiest example is a conservative judge voting in favor of a party with conservative leanings. A judge who has worked in the government may favor the government’s position, or a former defense lawyer may tend to find for the accused. A judge from Nebraska may be more likely to favor a litigant from that state or neighboring states. In each case, of course, it will be necessary to separate out other factors that influence voting, such as the party’s resources or the government’s ability to select stronger cases to appeal.

Judges may not only feel an affiliation with the direct litigants but with the interveners. Judges may allow interveners in order to improve the accuracy of their decisions—because the interveners are thought to add some value in terms of information or perspective to what the parties would otherwise argue. However, a judge may also use interveners as either sources of information about the outcome that best suits their personal views or of arguments to support their preferred outcome.[1]

If judges are influenced by affiliation, voting may be more extreme as interveners may push judges toward preferred policy positions. For example, on a court evenly split with left-leaning and right-leaning judges, interveners on each side may make it more difficult for these judges to find agreement, as they are encouraged to move in different directions. In countries with a more lenient intervener process, such as the United States and Canada, interveners may then generate disharmony on the bench.[2] Other countries, such as Australia, may only allow interveners where the court anticipates that the intervener will be of significant assistance in deciding the case correctly.[3]

Thus interveners may have a greater effect in those few cases, but a lesser effect overall.[4]

If on the other hand judges rely on interveners for high quality information rather than as signals of affiliation, the ideology or personal views of the judges should not be connected to the ideology or other markers of policy views of the interveners. Judges may in such cases be open to persuasion by information. Relatedly, interveners may help judges minimize mistakes by providing additional information.[5] Judges will likely rely on interveners for both accuracy and affiliation, depending on the country, the time period, and the ideological complexion of the court, among other factors.

Following on the idea that judges decide partly from affiliation with parties before them, we will examine the following hypothesis: [6]

H2: Judges will tend to vote in line with like-minded parties, whether litigants

or interveners.

  • [1] Alarie & Green, “Interventions”, supra note 17 at 383 (arguing that judges may use interveners to improve accuracy or as a source of information to further views they wish to be affiliatedwith, but may also allow interveners so these parties feel they have had their voices heard by thecourt and the public (which Alarie and Green call “acceptance”)). See also Joseph D. Kearney& Thomas W. Merrill, “The Influence of Amicus Curiae Briefs on the Supreme Court” (2000)148:3 University of Pennsylvania Law Review 743 at 747-748 [Kearney & Merrill, “Influence”](arguing that interveners may be providing new information and legal arguments to the judges(a legalist view), providing information about how different groups in society would react to aparticular decision (an interest group theory) or not influencing judges at all as they have fixedpositions (an attitudinal view)).
  • [2] See also Collins, supra note 7 at 173.
  • [3] Simone Cusack & Cecilia Riebl, “International Human Rights Law in AustralianCourts: A Role for Amici Curiae and Interveners” (2006) 31 Alternative Law Journal 122 at 124.
  • [4] Interestingly, because interveners in Australia submit their petition for leave to appeal at thesame time as their submissions in case leave is granted, they might influence the justices even ifleave is denied. In Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83, an intervenerwas denied leave to appeal, but Justice Kirby stated that “We have, of course, received [their]written submissions, and I have read them, and I will find that difficult to put out of my mind.”Williams, “Amicus Curiae,” supra note 10 at 389-390.
  • [5] Doron & Totry-Jubran, supra note 14 at 117-118.
  • [6] A judge may also consider affiliation with the lower court judges who made the decisionbeing appealed. See e.g. Russell Smyth & Vinod Mishra, “The Transmission of Legal Precedentacross the Australian State Supreme Courts over the Twentieth Century” (2011) 45:1 Law &Society Review 139; Peter McCormick & Tammy Praskach, “Judicial Citation, the Supreme Courtof Canada, and the Lower Courts: A Statistical Overview and the Influence of Manitoba” (1996)24 Manitoba Law Journal 335. A judge may, for example, be more likely to affirm decisionsfrom judges who sit in her home state or province—what McCormick refers to as the “homer”effect. Peter McCormick, “Judicial Citation, The Supreme Court of Canada, and the LowerCourts: The Case of Alberta” (1996) 34:4 Alberta Law Review 870 at 888. Similarly, the judgemay be more willing to agree with lower court judges with whom she shares views aboutpolicy—such as a conservative judge being more likely to affirm a decision by a conservativelower court. This affiliation effect may also relate to prior courts as where a conservative judge ismore likely to cite conservative precedent or potentially decisions by other conservative judges.See Anthony Niblett & Albert H. Yoon, “Friendly Precedent” (February 21, 2015) [unpublished],online: http://ssrn.com/abstract=2268707 (discussing citation practices and ideology).
 
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