In
Psychology, Strategy, and Behavioral Equivalence, Professor Stefanie
Lindquist and Dr. Wendy Martinek recognize that Kim has created an innovative
empirical model to test for circuit and Supreme Court effects on panel
decisionmaking at the United States Courts of Appeals. They recommend
caution, however, in interpreting these results as evidence of strategic
behavior since alternative explanations—including the effects of deliberation
and circuit court precedent—could also account for the findings presented.
Indeed, there is no basis for favoring a strategic theory over a deliberative
one. Behavioral equivalence is, unfortunately, often a confounding
problem in studies of strategic decision making on appellate courts.
Lindquist and Martinek maintain their belief from earlier studies that
while strategic behavior may take place on some courts, under some conditions,
the strongest influence on federal appellate courts are from judges
seeking consensus to promote the efficient administration of justice
and to minimize error.