Panel Effects in Administrative Law: A Study of Rules, Standards, and Judicial Whistleblowing

In this article, we consider whether “panel effects”—that is, the condition where the presence, or expected voting behavior, of one judge on a judicial panel influences the way another judge, or set of judges, on the same panel votes—varies depending upon the form of the legal doctrine. In particular, we ask whether the hand of an ideological minority appellate judge (that is, a Democrat-appointed judge with two Republican appointees or a Republican-appointed judge with two Democrat appointees) is strengthened by the existence of a legal doctrine packaged in the form of a rule rather than a standard. Specifically, we unbundle the panel interaction under rule and standard conditions and provide a framework for understanding a court’s relative deference to agency interpretations based on the diversity of the judicial panel’s political-ideological makeup and the form of the legal doctrine. In addition, we test our framework using the two major legal doctrines from the last sixty years covering judicial review of agency interpretations—Skidmore v. Swift & Co., 323 U.S. 134 (1944), and Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984)—the former representing a standard, the latter a rule.