Sound the Alarm? Judicial Decisions Regarding Publication and Dissent

Judges sitting on three-judge panels in the U.S. Courts of Appeals make decisions under the shadow of potential review by supervising courts, the full circuit sitting en banc and the Supreme Court. Review is more likely for published decisions, particularly when a dissent is present. Unpublished decisions do not have binding precedential status. These factors create the potential for judges to be strategic in deciding whether to publish a decision or write a dissent. We develop a formal model of decision aggregation that takes the possibility of negotiating a tradeoff between the ideological location of a rule and its precedential value into account. Implications of our model are tested empirically using an original data set of search and seizure cases. Our model and results indicate that preferences within the panel and judicial hierarchy coupled with discretionary review influence judges’ decisions regarding publication and dissent, and that these choices have important consequences.