Document Type

Article

Publication Title

Ohio State Law Journal

Publication Date

1998

Page Number

1635

Keywords

judicial discretion, decision making, adjudication theories, en banc court, positive theory

Disciplines

Courts | Judges | Law | Legal History

Abstract

As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners' normative frameworks, and suggest positive theory's central function in the growing debate.

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