American Politics & Public Policy Workshop: Jonathan Kastellec, Princeton

Jonathan Kastellec

Assistant Professor of Politics, Princeton University

"Signaling and Counter-Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review"

Abstract: In this paper we leverage the unique institutional features of the federal judicial hierarchy to evaluate the influence of whistleblowers on a principal's oversight of its agents. Drawing on a formal theory of the judicial hierarchy that emphasizes the influence of judicial dissents, we examine the role of whistleblowing dissents in triggering en banc review by full circuits of the Courts of Appeals.  We test two theoretical predictions, both of which are new to the literature.  First, when lower courts are more distant from higher courts, whistleblowing dissents signal more severe non-compliance by the lower court majority. Accordingly, the model predicts that the marginal effect of a whistleblowing dissent on the probability of review is increasing in the ideological distance between a full circuit and panel. Second, the credibility of a whistleblower---in terms of the severity of non-compliance that a whistleblowing dissent signals---decreases as the whistleblower moves farther from the lower court (in the direction of the higher court). Accordingly, we predict that the likelihood of en banc review should increase as the whistleblower moves closer to the lower court majority.   Using both original and existing data, we find empirical support for both predictions.  These results have important implications for assessing the role of whistleblowers in the judicial hierarchy, and suggest ways forward for understanding whistleblowing more broadly in other institutional contexts.