Dissent, “Dissentals,” and Decision Making

04 Dec 2012 03:04pm Marsha S. Berzon 

Building on Judge Wood's Essay on the external consequences of separate writing by judges on multijudge appellate panels, this Essay looks internally to examine how separate writing affects judicial decision-making processes by appellate courts. Studies in psychology and behavioral economics have identified various cognitive biases that may impact judicial decision making and have demonstrated that these biases can be at least partially neutralized by structured "adversarial collaboration." Drawing on these studies, I posit that the practice of separate writing on appellate panels often aids in facilitating such collaboration, but separate writing regarding denials of en banc review does not do so.

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