Does Ideology Matter in Bankruptcy? Voting Behavior on the Courts of Appeals

This Article empirically examines whether courts of appeals judges cast ideological votes in the bankruptcy context. The empirical study is unique insofar as it is the first to examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy: debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We also find, however, non-ideological factors—including the race of the judge and the disposition of the case by lower courts—that substantially influence the voting pattern of the judges in our study. The Article makes three broad contributions. First, it indicates that bankruptcy voting is comparatively non-ideological, at least at the level of the courts of appeals. Second, by identifying the influence of certain nonideological factors on voting behavior, the Article suggests avenues for profitable future research. And third, the * Professor of Law, Emory University. ** Professor of Law, University of Washington. We are grateful to Joanna Shepherd Bailey, Christina Boyd, Clifford Carrubba, Anthony Casey, Theodore Eisenberg, Lee Epstein, David Hoffman, Stefanie Lindquist, Katherine Litvak, Adam Malawi, Jeffrey Staton, Alexander Volokh, and Kathryn Watts for helpful suggestions and discussions. We also benefited greatly from the commentary of participants at the 2011 Annual National Conference of the Midwest Political Science Association (especially that of Wendy Martinek, who served as a commentator on the paper), the 2010 Conference on Empirical Legal Studies at Yale Law School (especially that of Edward Morrison, who served as a commentator on the paper), the 2010 Annual Meeting of the Canadian Law and Economics Association at the University of Toronto Faculty of Law, the 2010 Annual Meeting of the Midwestern Law and Economics Association at the University of Colorado Law School, and faculty workshops at Emory University School of Law, the University of Richmond School of Law, and the University of Washington School of Law.