Società Italiana di Diritto ed Economia, SIDE - ISLE 2015 - 11TH ANNUAL CONFERENCE

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Consensus and ideology at the Judicial Committee of the Privy Council
Sofia Amaral-Garcia, Lucia dalla Pellegrina, Nuno Garoupa

Last modified: 2015-12-05

Abstract


The purpose of this paper is to set up a model for the estimation of the extent to which judicial voting behavior is the result of a norm of consensus rather than fully reflecting judges’ ideology. We derive a two-stage model where the first-stage is aimed at estimating political ideology from sincere voting and from there construct a proxy for dissent suppression. In the second-stage heterogeneity in the cost of dissenting across different areas of the law is tested using a hierarchical model of voting on data from the Judicial Committee of the Privy Council (hereafter, JCPC) in the period 1998-2011.

The JCPC is a British court of last resort that hears three different types of appeals: i) domestic appeals; ii) Commonwealth appeals; and iii) devolution appeals (from 1998 to 2009). In a nutshell, domestic appeals are from ancient and ecclesiastical courts, and from a few professional disciplinary bodies (i.e., Disciplinary Committee of the Royal College of Veterinary Surgeons, the Professional Conduct Committee of the General Medical Council, and the Professional Committee of the General Dental Council). Commonwealth appeals are from Commonwealth jurisdictions and, since the 1960s, they tend to be dominated by business law and protection of property rights. Finally, devolution appeals concern cases in which devolved governments or legislatures went allegedly beyond their powers. This type of appeals arose after the Scotland Act 1998, the Government of Wales Act 1998, and the Northern Ireland Act 1998.

JCPC panels are generally composed of judges with different backgrounds: the vast majority are British judges that have a judicial training and practiced in England and Wales, Scotland or Northern Ireland and can sit in any type of appeals; a minority is composed by judges that practice in Commonwealth jurisdictions and can sit in Commonwealth and domestic cases.

This paper explores whether the bias in favor of a norm of consensus changes according to the area of law (i.e., devolution, domestic and Commonwealth appeals). This calls for investigating under which circumstances judges are likely to suppress their willingness to dissent on the decisions taken by the majority of panel colleagues. In order to manage this aspect, we initially derive a general model of consensus voting based on Fischman’s (2011) approach to the analysis of voting in circuit court panels. As typical in this kind of analyses, the structure of the model employs a random utility framework, while contemporaneously accounting for the influence of panel colleagues on each judge’s behavior in terms of her own vote.

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