In her recent article, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, Pauline Kim wades into the increasingly contentious scholarly debate about the determinative variables at play in judicial decisionmaking in three-judge panels of the federal courts of appeals. Professor Kim’s article sets out to test "two competing explanations of panel effects—one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges." She finds "strong evidence that the preferences of the full circuit [but not the Supreme Court] influence panel effects," which she claims are "precisely [the results] that are predicted by a strategic account of panel decision making." The paper makes a nice empirical contribution to the growing study of strategic judging and political-alignment effects.

In Professor Kim’s determination to distinguish her findings, however, she needlessly and erroneously "reject[s]" a leading theory of circuit court panel effects—the now well-known Whistleblowing Theory (WT) of circuit panel decisionmaking set out by Frank Cross and Emerson Tiller over a decade ago in the Yale Law Journal. That theory applies equally to deliberative and strategic accounts of circuit panel decisionmaking. Unlike the strategic-alignment model tested by Professor Kim, WT’s key insight is that legal doctrine interacts with panel diversity to constrain political discretion. Mere alignment between the panel and a higher court (whether it be the circuit en banc or the Supreme Court)—the key feature of Professor Kim’s test of the alignment hypothesis—is not essential to the strategic prong of WT and not relevant to the deliberative prong. Professor Kim appears to misunderstand this central thesis of WT—that it is legal doctrine’s interaction with panel diversity (not merely the interactive effect of a diverse judicial panel with politically aligned or unaligned higher courts) that produces "panel effects"—and nothing in her findings justifies rejecting the theory. If anything, her results are consistent with WT.