Amy J. Griffin (Georgetown University Law Center) has posted Peer Precedent: How Sister Circuits Shape Federal Appellate Decision-Making on SSRN. Here is the abstract:
When federal appellate courts face issues of first impression, they attribute great weight to sister circuit precedent, even though they don’t have to. This Article provides the first full empirical and theoretical account of how and why courts use sister circuit decisions—peer precedent—in the absence of binding authority. Moving well past vague and anecdotal remarks about the influence of sister circuit decisions, the Article develops a precise and novel model of sister circuit practices based on an original, hand-coded dataset of 805 issues of first impression. As it turns out, the weight and role of sister circuit precedent in federal appellate judicial reasoning is a significant piece of federal appellate methodology.
The study uncovers a set of surprisingly consistent judicial norms: when deciding issues of first impression, federal appellate judges consistently consult sister circuit precedent, attribute significant authoritative weight to that precedent, and explain their disagreement when they do not follow it. Agreement rates are remarkably high and approach unanimity once more than one circuit has ruled on an issue the same way. This finding calls into question the prevailing assumption that new legal issues meaningfully “percolate” in appellate circuit courts.
The Article evaluates and theorizes these sister circuit practices, developing a theoretical account to explain why federal appellate courts depend so heavily on sister circuit decisions even when they are not deemed binding. The Article argues that sister circuit norms are an organic compromise accommodating values of legitimacy, judicial independence, and national uniformity. These peer precedent practices serve worthwhile goals of thoughtful decision-making by requiring courts to engage with the reasoning in earlier decisions, and to explain the result.
The peer precedent model makes sense of persuasive authority by showing how a duty to engage with precedent can have a powerful effect on judicial decision-making-even without stare decisis. A circuit court facing an issue of first impression does not act as an independent laboratory, but as part of a large interconnected peer group. The study provides important insight into how judges make decisions when they are faced with the opportunity to make new law.
Highly recommended.