Does ideology matter in bankruptcy? Voting behavior on the courts of appeals

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Date: Jan. 2012
From: William and Mary Law Review(Vol. 53, Issue 3)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 24,490 words
Lexile Measure: 1810L

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ABSTRACT

This Article empirically examines whether courts of appeals judges cast ideological votes in the bankruptcy context. The empirical study is unique insofar as it is the first to examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy: debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We also find, however, non-ideological factors--including the race of the judge and the disposition of the case by lower courts--that substantially influence the voting pattern of the judges in our study.

The Article makes three broad contributions. First, it indicates that bankruptcy voting is comparatively non-ideological, at least at the level of the courts of appeals. Second, by identifying the influence of certain nonideological factors on voting behavior, the Article suggests avenues for profitable future research. And third, the Article makes a methodological contribution through its fine-grained approach, which demonstrates the importance of focusing on particular legal issues in order to reduce heterogeneity in, and bolster the reliability of, findings from empirical legal studies.

TABLE OF CONTENTS INTRODUCTION I. BANKRUPTCY AND IDEOLOGY A. Subject Matter of Cases B. Specialization in the Lower Courts in Bankruptcy Cases II. THE ROLE OF IDEOLOGY IN BANKRUPTCY: A CASE STUDY IN DEBT-DISCHARGEABILITY DETERMINATIONS A. Debt-Dischargeability Determinations B. Sample Selection C. Descriptive Statistics and Bivariate Analyses 1. Direction of Vote 2. Judicial Ideology 3. Panel Effects 4. Federal Regional Circuit 5. First-Tier Appellate Court 6. Bankruptcy Court and First-Tier Appellate Court Outcomes 7. Subject Matter of Debt-Dischargeability Determinations 8. Appellant Identity 9. Time-Period Controls 10. Judge Characteristics D. Findings from Multivariate Regression Models E. Interpretation of Results CONCLUSION APPENDIX

INTRODUCTION

In 1935, legal historian Charles Warren proclaimed that, although the history of bankruptcy legislation is "colorful," "[t]he law of bankruptcy is a dry and discouraging topic." (1) Forty-six years later, in his opinion dissenting from the Court's order denying a petition for writ of certiorari in a bankruptcy case, then-Justice William Rehnquist penned the following introductory words, which echoed Warren's proclamation:

Bankruptcy cases seldom receive much notice outside of those who are familiar with this branch of the law, and it is therefore understandable that there is a dearth of recent bankruptcy precedents decided on the merits in this Court as compared with constitutional cases, labor cases, and other more alluring subjects. (2)

All of this might lead one to believe that "bankruptcy is a hypertechnical, code-based, number-crunching field of law where ideology has no role to play." (3) Commentators have found evidence of ideological voting in other contexts among U.S. federal courts of appeals judges. (4) Yet even these commentators speculate that bankruptcy is a field that may not draw out ideological voting. (5)

In this Article, we examine whether judges cast ideological votes in the bankruptcy context. We hypothesize that ideology influences voting in the...

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Gale Document Number: GALE|A282822620