Lower Court Influence on High Court Decisions in the United Kingdom

• In Event: Court Opinion Language and Influence

Abstract

Prior studies find that the development of law is dependent on several factors, most certainly case facts (i.e. George and Epstein 1992), precedent (i.e. Knight and Epstein 1996), and the ideological preferences of judges (i.e. Segal and Spaeth 2001). On top of that, evidence shows that written documents are influential, as well, including litigant briefs (Corely 2008), amicus briefs (Corley, Collins, and Hamner 2014), and lower court dissents (Corley, Collings, and Calvin 2011). And, scholars have recently established that lower court judges are in the position of making meaningful contributions to the interpretation of law at higher courts through their written opinions. In their seminal work Corley, Collins, and Calvin (2011) show that US Supreme Court justices use lower federal court opinions to develop their own opinions, and Bowie and Savchak (2016) have extended this line of work by examining how state intermediate appellate court judges influence the opinion content of state supreme court opinions. The potential for judicial influence through written opinions and this practice, known as language borrowing, is well-established among U.S. courts and their judges, but what is less known is whether high court judges in other countries also borrow language from lower court opinions.

We argue that like much like the US courts, lower courts in the United Kingdom also influence the content of their higher opinions. Here, we add to this increasingly rich literature by examining specifically how court of appeals opinions influence the content of Supreme Court opinions, and in turn the development of law, in the United Kingdom. We theorize that ideology, case importance, and case complexity will all influence the degree to which UK Supreme Court justices borrow language from the court of appeals opinions.

In this pilot study of language borrowing in the United Kingdom we test several hypotheses about whether UK Supreme Court justices borrow language from lower court opinions and leverage new and original data on the UK Supreme Court and court of appeals. Specifically, our dataset includes all UK Supreme Court cases reviewing court of appeals cases from 2008 - 2019. We examine nearly 850 UK Supreme Court cases, and our unit of analysis is the court of appeals majority opinion-UK Supreme Court majority opinion dyad. The dependent variable is the percentage of phrases a Supreme Court majority opinion writer takes from the lower court opinion, obtained by analyzing both court of appeal and Supreme Court opinions through a plagiarism software program. For each case, we code whether the writer is the Supreme Court President (i.e., chief justice), how many years they have spent on the high court bench, and the quality of the lower court opinion writer including whether the lower court opinion writer is the Lord Chief Justice (i.e., head of the Court of Appeal). Additionally, we account for workload pressures by including variables that capture case complexity, the number of cases reviewed by the high court during the term, and the number of days until the end of the Court’s term. Within the empirical models we account for ideological heterogeneity between the lower and higher court opinion writers as well as the ideological direction of the precedent. We find preliminary support that UK Supreme Court justices also engage in language borrowing from lower court opinions. Our work has important implications for opinion formulation, doctrinal development, and higher and lower court interactions within comparative courts.

Authors

• Jennifer Bowie, University of Richmond

• Ali Shiraz Masood, Rhodes College

• Elisha Savchak-Trogdon, Elon University

• Cameron Micah Abrams, Rhodes College

• Kimberly Cameron

• Meghna Parvati Melkote, University of Richmond

• Natalie Smith, Rhodes College

• Bianca Wieck, Vanderbilt Law School