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49 BYU L. Rev. 367 (2023-2024)
Twenty-First Century Split: Partisan, Racial, and Gender Differences in Circuit Judges following Earlier Opinions

handle is hein.journals/byulr49 and id is 383 raw text is: Twenty-First Century Split: Partisan, Racial, and Gender Differences in Circuit Judges Following Earlier Opinions Stuart Minor Benjamin, Kevin M. Quinn & ByungKoo Kim* Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard's treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges' substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is both surprising and nuanced. We have two major findings. First, over the forty-four-year span we studied, we find growing partisan differences in positive treatments of earlier cases. The partisan differences are largest for treatments in ideologically salient categories of cases. Interestingly, the partisan differences arise more for treatments of opinions written by Democratic * Benjamin is the William Van Alstyne Professor of Law at Duke Law School; Quinn is a Professor at Emory Law School and in the Department of Quantitative Theory and Methods at the Emory College of Arts and Sciences; Kim is an Assistant Professor at the KDI School of Public Policy and Management. More than the usual thanks are in order. We thank LexisNexis, who shared their data with us in 2018 and patiently tracked down the answers to our many questions about the data over the next twenty-seven months. A dataset so massive required similarly massive work to identify, categorize, and organize its elements. Tom Balmat at Duke and Sean Chen at the Duke Law Library were particularly valuable in that lengthy process. Jane Bahnson and Wickliffe Shreve, also at the Duke Law Library, were indefatigable in helping us find relevant materials about Shepard's, Lexis, and court practices. Gloria Han, Andrew Tisinger, and Wenyi Zhou provided excellent research assistance, and Leanna Doty and Balfour Smith provided excellent editing assistance. Over the five-year gestation of the project, we have benefited from many colleagues' comments, including Matt Adler, Joseph Blocher, Curt Bradley, Michael Frakes, Jack Knight, Maggie Lemos, Marin Levy, Mat McCubbins, Darrell Miller, Jeff Powell, Neil Siegel, Georg Vanberg, Jonathan Wiener, and Ernie Young. We also thank colleagues who attended our 2021 Duke Law workshop on an early version of this Article as well as members of the Emory Law faculty who attended a 2022 workshop on a version of this Article. 367

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