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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) .

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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

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

Apparently judges’ decisions are not motivated by maximizing their own profit. The litera
tary consequences for themselves, or individuals who are more strongly motivated by the
tion, the "office motive". In a labexperiment,weruleoutbothtraditionalexplanationsby
authorities"publicofficial"or"judge"increasestheirsensitivity towardsthedegreebywhich
individuals are selfish, and it reduces the effect of their social value orientation (making
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
* Wegratefullyacknowledgehelpfulcommentsbytheeditor,anan onymousreferee,JudgePosner,JeffRachlinski,Kon

1. Introduction
"What Do Judges and Justices Maximize? The Same Thing Everybody Else Does" (Posner,
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
judicial independence (almost) completely shield judges from intervention. Why does the
principalagent problem nonetheless seemingly not materialize for judges? The two main
sufficiently contained by constraints; judges hold different preferences and selfselect into
Weclaimthatthisliterature overlooksamotivethatishighlyimportantfor,butnotspecific
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
any possibility of particularly conscientious individuals selfselecting into the position. We
Tocreateasocialproblemthatcallsforintervention,werelyonastan darddesignfromex
which this participant is randomly assigned is best off if everybody contributes maximally.
Ledyard,1995,Zelmer,2003).Averyrobust patternresults:onaverage,contributionsstart
somewherein the middle between nothing and everything,but gradually decay over time.
threat of punishment disciplines freeriders. We deviate from the standard design in one
In the literature, the puzzle is presented in the language of a principalagentrelationship.
personalprofit, e.g.bymaximizingleisure.Yetitisaprincipal agentproblemwithaspecial

caljudgefeelstheurgetofulfilltheexpectationsthatcomewiththeoffi ce,andnottoabuse
thepowersassignedtoherforselfishpurposes.Thedesignofthe experimentpreservesthis
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
ticipants.Furthernotethatasituationis frequentinjudicialpracticethatsharesthisfeature
prediction. There is no punishment. Contributions to the public good decay over time, as
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
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
Ideally, the legislator would want all wrongdoers to be treated equally, irrespective of the
terial. To test whether policy preferences of the authority have explanatory power, before
orientation (Liebrand and McClintock, 1988).
We find that punishment behavior is signifi
signan authority doesnothave powerto equal out her own payoff. The factthat her per
consistent with the way she would want to be treated herself. This is why we refer to the
It is normatively desirable that individuals who have no personal interest in the outcome
nonethelessdisciplineothers,evenifthiscomesatacost. Butinandofitselfthisevidence
doesnotsuffice toisolateanofficemotive.Theoutsiderscouldjustbeangryabouttheanti
ordertofindout whether "beingincharge"isrelevant,we rerun theexperiment,butnow
add a frame. In one treatment, we call the outsider a "public official".
In the other treat
1 Notethatfeedbackaboutthesocialvalueorientationtestisonlygivenattheveryendoftheexperiment.Thatwaywe
2 "Beamter“intheGermanoriginal.

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