scispace - formally typeset

Journal ArticleDOI

You Are in Charge: Experimentally Testing the Motivating Power of Holding a Judicial Office

10 Apr 2017-The Journal of Legal Studies (Max Planck Institute for Research on Collective Goods, Bonn)-Vol. 46, Iss: 1, pp 1-50

AbstractApparently, judges’ decisions are not motivated by maximizing profit. Two explanations compete: there are long-term monetary consequences; conscientious individuals self-select into the profession. In a lab experiment, we rule out both explanations. Nonetheless, authorities do a reliable job of overcoming a social dilemma. Calling the authorities public officials or judges strengthens the effect. This suggests that the effect is not driven by anger or sympathy with the victims but follows from the office motive: the desire to fulfill the expectations that come with an assigned task. We test three extensions: When given an opportunity to announce an explicit policy, judges become less sensitive to the objective degree of reproach and more sensitive to their personal social value orientation. If judges are elected or experienced, they react more intensely to norm violations. Experienced judges are more affected by their social value orientation.

Summary (3 min read)

1. Introduction

  • The remainder of the paper is organized as follows: in section 2, the authors summarize the rich literature that tries to explain why judges seemingly defy rational choice theory.
  • From this literature, the authors derive the hypotheses they test in the BASELINE.
  • Section 4 relates their paper to the experimental literature.
  • Section 5 reports the results from the BASELINE.
  • Section 8 investigates the behavior of judges that have been elected.

3. Design of the Baseline

  • Participants were invited using the software ORSEE (Greiner, 2015) .
  • For more information about the conduct of this BASELINE and all five treatments (discussed in sections 6-9), see Table 1.

Figure 1 Baseline

  • These visual impressions are supported by statistical analysis.
  • The authors have two alternative measures for punishment: the probability that an active participant is punished by whatever number of punishment points ("certainty"), and the amount of ECU subtracted from this participant's period profit ("severity").
  • 11 For profit, the theoretical prediction, assuming standard preferences, is not at the limit of support, which is why the authors do not need any additional statistical safeguards.
  • For two reasons the authors prefer this specification over a model with group fixed effects.
  • The idiosyncratic social value orientation of the respective authority moderates how she reacts to a lower absolute contribution.

6. Do Public Officials and Judges Behave Differently?

  • Figure 2 indicates that "public officials" punish a bit less, in particular in later periods, while "judges" punish a bit more.
  • But the authors neither find a significant treatment effect with nonparametric nor with parametric statistics, neither on the certainty nor on the severity of punishment.

Figure 2 Framing Effects

  • The authors begin with treatment effects on socially desirable motives (models 1 and 3).
  • For both treatments, the authors also find significant treatment effects on the sensitivity towards the contribution level in the respective group.
  • 26 In Table 3 , the authors had derived the socially undesirable effect from the fact that the two-way interactions between contributions and the authorities' social value orientation score were significant, as well as the two-way interactions between the level of contributions in the previous period and this score.
  • Three-way interactions are not significant at conventional levels.
  • Strikingly, this socially undesirable effect of personal policy preferences completely disappears with either frame.

Figure 3 Visual Representation of Three-Way Interactions from Table 4

  • In the first step, the authors generate data that precisely matches the data generating process in their sample, including the distribution of the fixed and random varia-bles.
  • The frequency of p-values below a certain α-level is their measure of statistical power.

Figure 4 Announcing a Policy

  • Left-hand side: data from judge frame treatment only certainty: a dummy that is 1 if an active member receives any punishment severity: number of ECU subtracted from period profit of an active member.
  • In the linear mirror model on severity, the interaction effect is insignificant, though.
  • If judges have announced their punishment policy, the severity of their choices is less sensitive to the level of contributions the more they are socially minded themselves.
  • In the regression explaining punishment severity, the authors also find a main effect and an interaction with the judges' personal social value orientation score.
  • It only matters for the punishment of citizens' who contribute less than the announced minimum.

8. Do Elected Judges Behave Differently?

  • Yet, statistically, the authors do not find any significant difference, whether they use non-parametric or parametric statistics.
  • The authors do not find a significant interaction either between treatment and period on any of these dependent variables.

Figure 5 Appointed vs. Elected Judges

  • Whether judges are appointed or elected is less important for the sensitivity of authorities to socially desirable and undesirable motives.
  • In model 1 of Table 7 , however, the authors do find that elected judges react more intensely to the absolute level of contributions, in the socially desirable direction (two-way interaction between treatment ELECT and Contribution).
  • 42 This suggests that elected judges feel empowered to act upon their personal preferences.
  • 42 Social value orientation scores of judges do not significantly differ between both treatments.
  • On the non-linear mirror models, the authors find even more significant effects (see We thus only find partial support for H 6 and conclude Result 7: If judges are elected, the likelihood of punishment is more sensitive to the absolute level of contributions.the authors.

9. Do Experienced Judges Behave Differently?

  • 43 Specifically the authors repeat the main experiment, not the test for social value orientation.
  • The authors compare data of judges in the first phase and in the second phase.
  • This dependence is captured by judge random effects.
  • In a regression that interacts the phase of the experiment with the period of each part of the experiment; the interaction term reaches p = .060 in the linear model.

Figure 6 Judicial Experience

  • The authors do, however, find clear effects of experience on the sensitivity of judges towards the choices of the subjects they govern.
  • This normatively desirable effect is, however, the weaker the more the judge is socially minded herself (the significant three-way interactions have opposite sign).
  • The authors find a similar pattern for reactions to local circumstances, i.e., to average contributions in the previous period.
  • Experienced judges are more sensitive to this information (two-way interactions between Average contributions in the previous period and EXPERIENCE), but the effect is weakened the more they are socially minded themselves (three-way interactions).
  • Answering the call of duty might require self-control, which diminishes with repetition.

10. Conclusion

  • As the (in)famous Stanford prison experiment has made obvious, there is also a dark side.
  • The legal order is full of safeguards to make this unlikely.
  • To an extent a mere legal frame has already been shown to have this effect (Engel and Reuben, 2015) .

Did you find this useful? Give us your feedback

...read more

Content maybe subject to copyright    Report

Preprints of the
Max Planck Institute for
Research on Collective Goods
Bonn 2016/15
You Are In Charge –
Experimentally Testing the
Motivating Power of Holding
a Judicial Ofce
Christoph Engel /
Lilia Zhurakhovska
MAX PLANCK SOCIETY

Preprints of the
Max Planck Institute
for Research on Collective Goods Bonn 2016/15
You Are In Charge – Experimentally Testing the
Motivating Power of Holding a Judicial Ofce
Christoph Engel / Lilia Zhurakhovska
October 2016,
revised January 2017
Max Planck Institute for Research on Collective Goods, Kurt-Schumacher-Str. 10, D-53113 Bonn
http://www.coll.mpg.de

YouAreInChargeExperimentallyTestingtheMotivating
PowerofHoldingaJudicialOffice
*
ChristophEngel
(MaxPlanckInstituteforResearchonCollectiveGoods,Bonn)
LiliaZhurakhovska
(UniversityofDuisburgEssen)
Abstract
Apparently judges’ decisions are not motivated by maximizing their own profit. The litera
tureusestwostrategiestoexplainthisobservation:judgescareaboutthelongtermmone
tary consequences for themselves, or individuals who are more strongly motivated by the
common
goodselfselectintotheprofession.Wesuggestthatthereisanadditionalexplana
tion, the "office motive". In a labexperiment,weruleoutbothtraditionalexplanationsby
design.Nonethelessauthoritiesdoareliablejobatovercomingasocialdilemma.Callingthe
authorities"publicofficial"or"judge"increasestheirsensitivity towardsthedegreebywhich
individuals are selfish, and it reduces the effect of their social value orientation (making
themmoreneutral).Thissuggeststhatthesociallydesirableeffectisnotdrivenbyangeror
sympathywiththevictims,butfollowsfromthedesiretofulfilltheexpectationsthatcome
withtheassignedtask. We test three extensions: When given an opportunity to announce
an explicit policy, judges become less sensitive to the objective degree of reproach, and
more sensitive to their social value orientation. If judges are elected or experienced, they
reactmoreintenselyto norm violations. Experienced judges are moreaffectedby their so
cialvalueorientation.
JEL:C91,D03,D63,D73,H11,H41,H83,K41
Keywords:judicialbehavior,officemotive,publicgoodsexperiment,judicialframe,election,
experience

* Wegratefullyacknowledgehelpfulcommentsbytheeditor,anan onymousreferee,JudgePosner,JeffRachlinski,Kon
stantinosChatziathanasiouandSvenjaHippelandaudiencesattheRoyalAcademyofSciencesintheNetherlands,and
attheUniversityofSouthernCaliforniaLawSchool.

2
1. Introduction
"What Do Judges and Justices Maximize? The Same Thing Everybody Else Does" (Posner,
1993).ThetitleofJudgePosner’s1993articlehasprovokedawholeliterature.Actually,the
bodyofhispaperismuchmorenuanced,ashislatercontributionsare(theyaresummarized
in Posner, 2010). Yet the original question remains still unresolved. In economic parlance,
judgesareagents,whilethepeople,thestate,orthegovernmentare/istheir principal(s).A
hugeliterature in economicsstarts fromthe assumptionthat a principalagent relationship
createsaproblem(forasummaryaccountsee LaffontandTirole,1993).Iftheprincipal can
notconditiontheagent’spayoffontheagent’saction,theagentactssuchthatshemaximiz
esherownpayoff,irrespectiveofthedetrimentfortheprincipal.Therulesmeanttoprotect
judicial independence (almost) completely shield judges from intervention. Why does the
principalagent problem nonetheless seemingly not materialize for judges? The two main
answersthathavebeengivenare:judgesare,indeed,selfishbutjudicialdecisionmakingis
sufficiently contained by constraints; judges hold different preferences and selfselect into
office.
Weclaimthatthisliterature overlooksamotivethatishighlyimportantfor,butnotspecific
to,judges.Judgesdonotbehave(plainly)selfishlysimplybecausetheyhavebeenassigneda
public office. In their majority they live up to the expectationsthat go with holding the of
fice. To put this claim to the test, we design a lab experiment. In the lab, we are able to
completelyremoveinstitutionalandsocialconstraints.Weconstructanenvironmentwhere
thereisaclearandeasilyobservableconflictbetweenselfishbehaviorandtheexpectations
thatgowiththeoffice.Wegivesubjectsintheroleofauthoritiestheopportunitytoaddress
atruesocialproblem,atacosttothemselves.Werandomlyassigntheoffice,thusexcluding
any possibility of particularly conscientious individuals selfselecting into the position. We
ruleoutanylongtermeffectsonauthorities’profit.
Tocreateasocialproblemthatcallsforintervention,werelyonastan darddesignfromex
perimentaleconomics,alinearpublicgood.Thisdesigncreatesasocialproblem.Individual
ly,eachparticipantisbestoffifshedoesnotcontributetoajointproject.Yetthegroupto
which this participant is randomly assigned is best off if everybody contributes maximally.
Thisexperimenthasbeenreplicatedhundredsoftimes(foroverviews
seeChaudhuri,2011,
Ledyard,1995,Zelmer,2003).Averyrobust patternresults:onaverage,contributionsstart
somewherein the middle between nothing and everything,but gradually decay over time.
Thepatternisreversed,though,ifparticipantsaregivenanopportunitytopunisheachoth
er,evenifthisiscostly(Fehr
andGächter,2002,2000,NikiforakisandNormann,2008).The
threat of punishment disciplines freeriders. We deviate from the standard design in one
respect.Werandomlyassigntoeachgroupoffourcontributorsafifthparticipant.Thispar
ticipantalonehaspowertometeoutpunishment,whichiscostlyforher.Shedoesnotben
efitfromcontributionstothepublicgood.Insteadsheearnsafixedfeeandhasanaddition
alendowmentthatshecanuseforpunishment(orkeep).Thegameisrepeated.Throughout
theexperiment,groupcompositionisheldconstant.
In the literature, the puzzle is presented in the language of a principalagentrelationship.
Oncetheyareinoffice,judgescouldabusetheguaranteeofindependencetoincreasetheir
personalprofit, e.g.bymaximizingleisure.Yetitisaprincipal agentproblemwithaspecial
feature:theprincipalarethepeople.Theassignedtaskoftheagentistogovernthepeople,

3
i.e.theprincipal.Itisthisspecialfeaturethatweclaimiscriticalinbehavioralterms.Atypi
caljudgefeelstheurgetofulfilltheexpectationsthatcomewiththeoffi ce,andnottoabuse
thepowersassignedtoherforselfishpurposes.Thedesignofthe experimentpreservesthis
featureofthereallifesituation.
An important feature of our design is that we test students with various majors, while we
wanttounderstandthechoices of judges.For us students arenot just aconveniencesam
ple. In fact, not testing professional judges is critical for identification. Had we found the
sameresultswithjudges,wewouldnothaveknownwhetherresults aredrivenbythefact
thatspecialindividualsselectintobecomingjudges,orby theirexposuretothejudicialpro
fessional environment. We would not have been able to isolate the office motive. By con
trast,wecandosowithstudents,sincewecanrandomlyassigntheofficetooneinfivepar
ticipants.Furthernotethatasituationis frequentinjudicialpracticethatsharesthisfeature
withourexperiment:individualsononetimejuryduty.
Ifauthoritiesholdstandardpreferences,i.e.,iftheymaximizetheirpayoff,wehaveaclear
prediction. There is no punishment. Contributions to the public good decay over time, as
theywouldintheabsenceofthepunishmentoption.Infact,28%oftheauthoritiesbehave
this way. But the vast majority of 72% are willing to discipline freeriders, although this
means a smaller payoff for them. Punishment is explained by two reasonable and socially
desirablefactors.Participantsarethemorelikelytobepunishedthelesstheyhavecontrib
uted. Authorities, on top, care about the degree by which participants deviate from the
group average in the previous period. Authorities thus conjointly apply an absolute and a
relative definition of freeriding, and target both. Holding an office indeed strongly moti
vatesonetodowhatiscalledfor.
Ideally, the legislator would want all wrongdoers to be treated equally, irrespective of the
particularauthoritytheyarefacing.Thepolicypreferencesoftheauthorityshouldbeimma
terial. To test whether policy preferences of the authority have explanatory power, before
thestartofthemainexperiment,usingastandardtest,weelicittheauthorities’socialvalue
orientation (Liebrand and McClintock, 1988).
1
We find that punishment behavior is signifi
cantlymoderatedbytheauthorities’personalsocialvalueorientation.Notethatinourde
signan authority doesnothave powerto equal out her own payoff. The factthat her per
sonalsocialvalueorientationexplainsherpunishmentchoicesshowsthatshe
hasaprefer
enceforothersbehavinginaway,andforothers’payoffsbeingdistributedinawaythatis
consistent with the way she would want to be treated herself. This is why we refer to the
authorities’socialvalueorientationasapolicypreference.
It is normatively desirable that individuals who have no personal interest in the outcome
nonethelessdisciplineothers,evenifthiscomesatacost. Butinandofitselfthisevidence
doesnotsuffice toisolateanofficemotive.Theoutsiderscouldjustbeangryabouttheanti
socialbehaviorofsomeindividuals,or
theycouldshowsympathywiththevictims.Thus,in
ordertofindout whether "beingincharge"isrelevant,we rerun theexperiment,butnow
add a frame. In one treatment, we call the outsider a "public official".
2
In the other treat

1 Notethatfeedbackaboutthesocialvalueorientationtestisonlygivenattheveryendoftheexperiment.Thatwaywe
canensurethattheauthorities’decisionsinthepublicgoodsexperimentarenotinfluencedbytheoutcomeofthefirst
partoftheexperiment.
2 "Beamter“intheGermanoriginal.

Citations
More filters

Journal ArticleDOI
07 Nov 2019
Abstract: Much of political debate focuses on the concern that machines might take over. Yet in many domains it is much more plausible that the ultimate choice and responsibility remain with a human decision-maker, but that she is provided with machine advice. A quintessential illustration is the decision of a judge to bail or jail a defendant. In multiple jurisdictions in the US, judges have access to a machine prediction about a defendant's recidivism risk. In our study, we explore how receiving machine advice influences people's bail decisions. We run a vignette experiment with laypersons whom we test on a subsample of cases from the database of this prediction tool. In study 1, we ask them to predict whether defendants will recidivate before tried, and manipulate whether they have access to machine advice. We find that receiving machine advice has a small effect, which is biased in the direction of predicting no recidivism. In the field, human decision makers sometimes have a chance, after the fact, to learn whether the machine has given good advice. In study 2, after each trial we inform participants of ground truth. This does not make it more likely that they follow the advice, despite the fact that the machine is (on average) slightly more accurate than real judges. This also holds if initially the advice is mostly correct, or if it initially is mostly to predict (no) recidivism. Real judges know that their decisions affect defendants' lives. They may also be concerned about reelection or promotion. Hence a lot is at stake. In study 3 we emulate high stakes by giving participants a financial incentive. An incentive to find the ground truth, or to avoid false positive or false negatives, does not make participants more sensitive to machine advice. But an incentive to follow the advice is effective.

23 citations


Journal ArticleDOI
Abstract: What is the impact of caseload on judicial decision making? Is increasing judicial staff effective in improving judicial services? To address these questions, we exploit a natural, near‐randomized experiment in the Israeli judiciary. In 2012, six senior registrars were appointed in two of the six magistrate's court districts. The choice of districts was motivated by reasons unrelated to judicial performance. In these two districts, the civil caseload per judge was substantially reduced. We find that the reduction had a significant impact on the process and outcomes of judicial decision making. Judges working in courts with reduced caseload invested more resources in resolving each case. The effect is mostly to the advantage of plaintiffs, who were more likely to win, recover a larger fraction of their claims, and be reimbursed for litigation costs. We discuss the implications for judicial management and theories about judicial decision making.

4 citations


Journal ArticleDOI
Abstract: In a nutshell, price cap regulation is meant to establish a quid pro quo: regulators are obliged by law to intervene only at rare, previously defined points in time, and only by imposing an upper bound on prices; firms are meant to justify regulatory restraint by adopting socially beneficial innovations. In the policy debate, a potential downside of the arrangement has featured less prominently: the economic environment is unlikely to be stable while the cap is in place. If regulators take this into account, they have to decide under uncertainty and also anticipate how regulated firms will react. In a lab experiment, we manipulate the degree of regulatory uncertainty. We compare a baseline when regulators have the same information as firms about demand with treatments wherein they receive only a noisy signal and another when they know only the distribution from which demand realizations are taken. In the face of uncertainty, regulators impose overly generous price caps, which firms exploit. In the experiment, the social damage is severe, and does not disappear with experience.

4 citations


Journal ArticleDOI
Abstract: The United States is unique in that important actors within the criminal justice system, namely judges and prosecutors, are selected in popular election. Several states are currently adjusting whether political party affiliation is listed on the ballot. Additionally, states differ by how easy it is for candidates from non-dominant parties to gain access to the ballot. We use a laboratory experiment to investigate how these two important policy changes to political competition affect campaign spending and outcomes. Using asymmetric contests designed to capture the institutional change, we find that subjects spend beyond both the socially optimal level and the amount predicted by theory. This over-competition is not uniform, but rather concentrated in those subjects who have the strategic advantage (either dominant-party affiliation or restricted ballot access of competitors). Opening up the election process, therefore, leads to reductions in the wasteful, rent-seeking spending (contrary to theory). Disadvantaged subjects are less likely to exit the race when the election process is opened, as well. Thus, a level playing field promotes participation. Furthermore, we explore heterogeneous treatment effects, finding less campaign spending for risk-loving, non-ambiguity averse, strategically sophisticated, and pro-social subjects. Therefore, elections disproportionately select individuals without these characteristics. Additionally, the mix of those who win the election adjust with changes in the electoral rules as well.

2 citations


Journal ArticleDOI
Abstract: The Wisconsin Supreme Court allows machine advice in the courtroom only if accompanied by a series of warnings. We test 878 US lay participants with jury experience on fifty past cases where we know ground truth. The warnings affect their estimates of the likelihood of recidivism and their confidence, but not their decision whether to grant bail. Participants do not get better at identifying defendants who recidivated during the next two years. Results are essentially the same if participants are warned in easily accessible language, and if they are additionally informed about the low accuracy of machine predictions. The decision to grant bail is also unaffected by the warnings mandated by the Supreme Court if participants do not first decide without knowing the machine prediction. Oversampling cases where defendants committed violent crime does not change results either, whether coupled with machine predictions for general or for violent crime. Giving participants feedback and incentivizing them for finding ground truth has a small, weakly significant effect. The effect becomes significant at conventional levels when additionally using strong graphical warnings. Then participants are less likely to follow the advice. But the effect is counterproductive: they follow the advice less if it actually is closer to ground truth.

1 citations


References
More filters

Journal ArticleDOI
Abstract: There is strong evidence that people exploit their bargaining power in competitivemarkets butnot inbilateral bargainingsituations. Thereisalsostrong evidence that people exploit free-riding opportunities in voluntary cooperation games. Yet, when they are given the opportunity to punish free riders, stable cooperation is maintained, although punishment is costly for those who punish. This paper asks whether there is a simple common principle that can explain this puzzling evidence. We show that if some people care about equity the puzzles can be resolved. It turns out that the economic environment determines whether the fair types or the selesh types dominate equilibrium behavior.

8,167 citations


Book
01 Jan 1993
Abstract: More then just a textbook, A Theory of Incentives in Procurement and Regulation will guide economists' research on regulation for years to come. It makes a difficult and large literature of the new regulatory economics accessible to the average graduate student, while offering insights into the theoretical ideas and stratagems not available elsewhere. Based on their pathbreaking work in the application of principal-agent theory to questions of regulation, Laffont and Tirole develop a synthetic approach, with a particular, though not exclusive, focus on the regulation of natural monopolies such as military contractors, utility companies, and transportation authorities. The book's clear and logical organization begins with an introduction that summarizes regulatory practices, recounts the history of thought that led to the emergence of the new regulatory economics, sets up the basic structure of the model, and previews the economic questions tackled in the next seventeen chapters. The structure of the model developed in the introductory chapter remains the same throughout subsequent chapters, ensuring both stability and consistency. The concluding chapter discusses important areas for future work in regulatory economics. Each chapter opens with a discussion of the economic issues, an informal description of the applicable model, and an overview of the results and intuition. It then develops the formal analysis, including sufficient explanations for those with little training in information economics or game theory. Bibliographic notes provide a historical perspective of developments in the area and a description of complementary research. Detailed proofs are given of all major conclusions, making the book valuable as a source of modern research techniques. There is a large set of review problems at the end of the book.

3,563 citations


Journal ArticleDOI
Abstract: We examine a simple theory of altruism in which players' payoffs are linear in their own monetary income and their opponents. The weight on the opponent's income is private information and varies in the population, depending, moreover, on what the opponent's coefficient is believed to be. Using results of ultimatum experiments and the final round of a centipede experiment, we are able to pin down relatively accurately what the distribution of altruism (and spite) in the population is. This distribution is then used with a reasonable degree of success to explain the results of the earlier rounds of centipede and the results of some public goods contribution games. In addition, we show that in a market game where the theory of selfish players does quite well, the theory of altruism makes exactly the same predictions as the theory of selfish players. Journal of Economic Literature Classification Numbers: C70, C72, D90, D92.

1,351 citations


Book
26 Feb 1993
Abstract: This book, authored by two leading scholars of the Supreme Court and its policy making, systematically presents and validates the use of the attitudinal model to explain and predict Supreme Court decision making. In the process, it critiques the two major alternative models of Supreme Court decision making and their major variants: the legal and rational choice. Using the US Supreme Court Data Base, the justices' private papers, and other sources of information, the book analyzes the appointment process, certiorari, the decision on the merits, opinion assignments, and the formation of opinion coalitions. The book will be the definitive presentation of the attitudinal model as well as an authoritative critique of the legal and rational choice models. The book thoroughly reflects research done since the 1993 publication of its predecessor, as well as decisions and developments in the Supreme Court, including the momentous decision of Bush v. Gore.

895 citations


Book
26 Feb 1993
Abstract: Preface 1. Introduction: Supreme Court policy making 2. Models of decision making 3. A political history of the Supreme Court 4. Staffing the Court 5. Getting into court 6. The decision on the merits process 7. Opinion assignment and opinion coalitions 8. The Supreme Court and constitutional democracy 9. The impact of judicial decisions 10. Conclusion Appendix Index.

714 citations