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.
REFERENCES
Segal, Jeffrey, and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE
ATTITUDINAL MODEL. New York: Cambridge University Press.
CASE REFERENCES
BRUTON v. UNITED STATES, 391 US 123 (1968).
TOWNSEND v. SAIN, 372 US 293 (1963).
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Copyright 2002 by the author, John Fliter.