Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

The quest for empirical evidence of strategic judicial behavior has produced mixed results. This study finds such evidence in the decisions made while crafting an opinion. Central to any opinion is which precedents are cited and whether their scope is limited (negative treatment) or expanded (positive treatment). I look for evidence of strategic anticipation of en banc review in these decisions using an original dataset of published search and seizure cases from the U.S. Courts of Appeals from 1953 to 2010. A panel is less likely to negatively treat a precedent with which the full circuit is more closely aligned. Circuit preferences also have an effect on citation itself, but only when the panel is at least moderately aligned with a precedent. Moreover, the panel's own ideology is only a significant predictor of citation when the full circuit is favorably disposed toward a particular precedent.