Vol. 12 No. 12 (December 2002)

THE U.S. COURTS OF APPEALS AND THE LAW OF CONFESSIONS: PERSPECTIVES ON THE HIERARCHY OF JUSTICE by Sara C. Benesh. New York: LFB Scholarly Publishing, 2002. 169 pp. $55 Cloth. ISBN: 1-931202-39-7.

Reviewed by John Fliter, Department of Political Science, Kansas State University. Email: jfliter@ksu.edu .

This is a short book that goes a long way in developing our understanding of judicial decision making at the federal appellate court level. The author applies a modified principal-agent model to the hierarchical relationship between the Supreme Court and lower Courts of Appeals. Benesh then tests the theory using several methodologies that measure the impact of legal, attitudinal, strategic, and institutional influences on appellate court decision making.

In Chapter One, "The Hierarchy of Justice," Benesh makes the case for a more integrated model of decision making for the Courts of Appeals. She notes that the legal and attitudinal models have dominated most research on Supreme Court decision making. The legal model emphasizes the facts of a case in light of the text of the Constitution and statutes, the original intent of the framers, precedent, and a balancing of interests. The attitudinal model, advanced most prominently by Segal and Spaeth (1993), argues that Supreme Court decisions are a product of the facts of a case considered in light of the ideological attitudes and policy preferences of the justices. Lower courts, however, decide cases in a different context. As Benesh points out, Courts of Appeals do not have control over their docket, appellate judges may be influenced by political pressures because they have ambitions for higher office, and, given their position in the judicial hierarchy, they are more constrained by precedent and may make strategic calculations to minimize the likelihood of reversal. Because of these differences, a model of decision making for the Courts of Appeals should incorporate legal, attitudinal, strategic, and institutional influences.

Benesh adopts a modified "principal-agent" theory of the hierarchy of justice that encapsulates all four models of judicial behavior. In its basic form, the principal-agent theory is defined as a relationship where "one party, the principal, enters into a contractual relationship with another, the agent, in the expectation that the agent will subsequently choose actions that produce outcomes desired by the principal" (p. 7). Principals have a loyalty expectation but agents have their own interests and may act to advance those interests. The challenge for the principal is to create enforcement mechanisms or incentive structures that will constrain the actions of the agent. Because of an asymmetry in information, the agent may have an opportunity to "shirk" and thus avoid meeting the expectations of the principal.

Benesh acknowledges that the principal-agent theory does not perfectly fit the relationship between the Supreme Court and Courts of Appeals. As a principal, the Supreme Court does not have the time, resources, or inclination to patrol all lower court decisions to enforce compliance with Court precedents. Still, the author argues, the model is useful for examining the hierarchical relationship between the Supreme Court and circuit courts. Benesh draws from judicial impact and implementation studies to demonstrate the applicability of principal-agent theory to the Supreme Court - Courts of Appeals relationship. Although general compliance with High Court rulings is the norm, lower courts have some room to exert power in their interpretation and implementation of Supreme Court precedents. Appellate courts may follow Supreme Court precedent when they agree with the policy, or are indifferent to it, shirk when they dislike a policy, or sabotage a policy when they strongly object. In order to capture the dynamics of this relationship, Benesh argues that we need a model of appellate decision making that examines all relevant influences of legal, attitudinal, strategic, and institutional (p. 18). She admits that this integrated model is not as simple and parsimonious as using a single explanation, such as judicial attitudes, to explain and predict Supreme Court making. She argues, however, that the nature of appellate court decision making requires such a model.

The next chapter examines the hierarchical relationship further by utilizing a judicial principal-agent game, complete with payoffs, to determine whether and when, at least theoretically, the lower courts will comply with Supreme Court doctrine and when they will not. Based on her calculations of expected utility functions, and the minimum role that the Supreme Court plays in supervision, Benesh states that the lower courts should not be following Supreme Court precedents. But somehow the Supreme Court is able to induce compliance nonetheless. Several factors, such as the perceived legitimacy of the Supreme Court and convergence of policy preferences, may explain the disjunction between theory and practice.

Chapter Three provides a complete and succinct review of judicial doctrine in confession cases. Benesh uses West's Key Number system to identify the universe of cases for the data set, selecting every Supreme Court and Court of Appeals case under keys 516 through 538 decided between 1946 and 1981. Using a fact-pattern analysis, she codes the presence or absence of relevant facts concerning the voluntariness of confessions, as determined by the Supreme Court, in circuit court decisions. If the pertinent facts are present in the appellate court decision, then the agent appears to be following its principal.

In Chapter Four, Benesh describes in detail the model that is used to test the influence of the four explanations for judicial decision making and her findings. The legal model is represented by Supreme Court precedent, which the author measures using fact pattern analysis (FPA). Supreme Court precedent is also used as a test of the neo-institutional model because precedent represents the hierarchical environment of the appellate courts and their attention to the pronouncements of the Supreme Court. The attitudinal model is tested using party affiliation of the appellate judge as a proxy for policy preferences. The strategic model, and indirectly the neo-institutional model, are tested using Supreme Court ideology. This measure does not capture any strategic interactions within appellate courts, but it does reflect how a lower court might consider the ideological composition of the High Court and the consequences of an appeal to that court. In other words, the lower courts, acting as the agent, contemplate the ideology of the principal when making a decision. The author controls for dozens of fact pattern variables in order to test the central issue in the confession cases, the voluntariness of confessions.

Benesh finds that the Supreme Court's treatment of the facts is given serious consideration by the Courts of Appeals. Requests for attorneys and the lack of legal counsel are significant influences on the determination of voluntariness of confessions. Ideology is also highly significant. The more liberals on the circuit panel, the more likely the lower court is to exclude the confession. A panel composed of all liberal judges excluded confessions in 13.3% of the cases (p. 69). In looking at the differences among the circuits, the author discovered that the DC Circuit overturned confessions at the highest rate (about 45% of the time), while the 10th Circuit had only a 4% rate of exclusion, lowest among the circuits. Variation among all of the other circuits, however, was quite small.

Based on these results, Benesh concludes that all four models of Supreme Court decision making have an influence on the circuit courts. The attitudinal model is supported because liberal panels are more likely to exclude confessions. She finds support for the legal model because factual considerations are carefully weighed by the lower courts. Although adherence to precedent can be classified as a legal consideration, Benesh suggests that it could be used to reflect an institutional influence as well because it demonstrates that circuit courts are constrained by their role in the judicial hierarchy. She even finds some credence in the strategic model because the circuits appear to decide cases with an eye toward the ideological composition of the Supreme Court and the possibility for reversal. These conclusions are sound, especially with respect to the attitudinal and legal models, although the author's use of the influence of precedent to lend support for both the legal and institutional models, and by implication, the strategic, may be reading too much into that variable.

Following the multivariate analysis, Benesh uses a qualitative study of two non-salient confession cases, TOWNSEND v. SAIN (1963) and BRUTON v. UNITED STATES (1968), to examine whether the circuit courts might be creatively avoiding Supreme Court precedent. She takes this approach because "it is possible that the multivariate analysis finds compliance with the letter of the Supreme Court precedents, but not with their spirit" (p. 79). This approach adds an important dimension to the research and strengthens the results. Examining the application of these two holdings in all the circuits, the author finds no real examples of noncompliance, only a few instances of "lack of enthusiasm." The bottom line is that the appellate courts demonstrated a high level of compliance with Supreme Court precedents.

But why do lower courts comply when the chance for review and reversal is minimal? Benesh argues that the type of influence that the Supreme Court has on the Courts of Appeals is one of moral authority. That authority is based on "what the Supreme Court is rather than what it does" (p. 129). It is a product of the culture and socialization of federal judges. In other words, it is an institutional constraint. But she suggests that lower appellate courts can have their cake and eat it too. Judges in the Courts of Appeals, though more constrained than Supreme Court justices, can still be ideological and strategic actors. They just have to be more creative to maintain the appearance of compliance.

Benesh is sensitive to the limitations of her study, and she concludes the book by identifying some unanswered questions. For example, is it moral authority that drives compliance, or do workload considerations constrain the lower courts to follow precedent simply because it is the path of least resistance? Future research can explore whether the results in this study apply to other time periods and subject matters. Also, more work can be done to examine the role of ideology and strategic considerations at the appellate court level. The integrated model may have more explanatory value than predictive value. If legal, attitudinal, strategic, and institutional factors are all relevant at the circuit court level, can we predict which variable will have the most
influence in a given case?

The book is well written but appears to be a published dissertation, and as such it has a rather formal structure and style. The book's narrow focus and level of analysis would not appeal to many undergraduate students. However, this volume is recommended reading for scholars and graduate students of judicial decision making. It is an excellent example of well-designed, theoretically driven, empirical research. The book would work well as a supplementary text in a seminar on the federal courts or criminal law.

Over the years public law scholars within the field of political science have focused their research efforts on the Supreme Court, and in doing so, have probably exaggerated the influence of the High Court on constitutional doctrine. For thousands of cases decided each year in the federal courts, Courts of Appeals are the judicial forums of last resort. They deserve more scholarly attention, and they are starting to get it. This book provides a significant contribution to the literature in that regard.

Segal, Jeffrey, and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

BRUTON v. UNITED STATES, 391 US 123 (1968).
TOWNSEND v. SAIN, 372 US 293 (1963).

Copyright 2002 by the author, John Fliter.