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Journal Article•DOI•

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

Christoph Engel1, Lilia Zhurakhovska1•
Max Planck Society1
10 Apr 2017-The Journal of Legal Studies (Max Planck Institute for Research on Collective Goods, Bonn)-Vol. 46, Iss: 1, pp 1-50
TL;DR: The authors found that 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, suggesting 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.
Abstract: Apparently, 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)

Jump to: [1. Introduction] – [3. Design of the Baseline] – [4. Related Experimental Literature] – [Figure 1 Baseline] – [6. Do Public Officials and Judges Behave Differently?] – [Figure 2 Framing Effects] – [Figure 3 Visual Representation of Three-Way Interactions from Table 4] – [Figure 4 Announcing a Policy] – [8. Do Elected Judges Behave Differently?] – [Figure 5 Appointed vs. Elected Judges] – [9. Do Experienced Judges Behave Differently?] – [Figure 6 Judicial Experience] and [10. Conclusion]

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
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
YouAreInCharge–ExperimentallyTestingtheMotivating
PowerofHoldingaJudicialOffice
*
ChristophEngel
(MaxPlanckInstituteforResearchonCollectiveGoods,Bonn)
LiliaZhurakhovska
(UniversityofDuisburg‐Essen)
Abstract
Apparently judges’ decisions are not motivated by maximizing their own profit. The litera‐
tureusestwostrategiestoexplainthisobservation:judgescareaboutthelong‐termmone‐
tary consequences for themselves, or individuals who are more strongly motivated by the
common
goodself‐selectintotheprofession.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,public‐goodsexperiment,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 principal‐agent 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
principal‐agent problem nonetheless seemingly not materialize for judges? The two main
answersthathavebeengivenare:judgesare,indeed,selfishbutjudicialdecision‐makingis
sufficiently contained by constraints; judges hold different preferences and self‐select 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 self‐selecting into the position. We
ruleoutanylong‐termeffectsonauthorities’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 free‐riders. 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 principal‐agent‐relationship.
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:individualsonone‐timejuryduty.
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 free‐riders, 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 free‐riding, 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’decisionsinthepublic‐goodsexperimentarenotinfluencedbytheoutcomeofthefirst
partoftheexperiment.
2 "Beamter“intheGermanoriginal.
Citations
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Nina Grgić-Hlača1, Christoph Engel1, Krishna P. Gummadi1•
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TL;DR: This article explored how receiving machine advice influenced people's bail decisions and found that receiving advice has a small effect, which is biased in the direction of predicting no recidivism, despite the fact that the machine is (on average) slightly more accurate than real judges.
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.

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Manna from Heaven for Judges: Judges’ Reaction to a Quasi‐Random Reduction in Caseload

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Christoph Engel1, Keren Weinshall2•
Max Planck Society1, Hebrew University of Jerusalem2
01 Dec 2020-Journal of Empirical Legal Studies
TL;DR: In this article, the impact of caseload on judicial decision making was investigated in the Israeli judiciary and six senior registrars were appointed in two of the six magistrate's court districts, and they found that the reduction had a significant impact on the process and outcomes of judicial decision-making.
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.

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12 Sep 2022-Legal and Criminological Psychology
TL;DR: The authors discusses and models potential sources of pro-prosecution bias in judges with prosecutorial backgrounds, including professional and self-selection into the judiciary, prosecutorial socialization and attitudes that can shape a prosecutorial mindset, and the effects of common unconscious biases, confirmation bias and role induced bias.
Abstract: Although judges may be well intended when taking an oath to be impartial when they reach the bench, psychological and legal literature suggests that their legal approaches, behaviour, and decision-making processes are subconsciously impacted by biases stemming from and influenced by their attitudes, ideology, backgrounds, and previous experiences. Drawing from prior models of sources of bias in legal contexts and existing literature on judges, this paper discusses and models potential sources of pro-prosecution bias in judges with prosecutorial backgrounds. These include (1) professional and self-selection into the judiciary; (2) prosecutorial socialization and attitudes that can shape a prosecutorial mindset; and (3) the effects of common unconscious biases, confirmation bias and role induced bias, that may shape judicial behaviour through formed beliefs and approaches stemming from the prosecutorial mindset and selection into the judiciary. As the vast majority of judges are former prosecutors in the U.S. as well as in many other countries, this paper considers possible ways to deal with pro-prosecution bias and the potential importance of diversifying judges' professional backgrounds.

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Christoph Engel1, Klaus Heine2•
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28 Aug 2017-Public Choice
TL;DR: In this article, the authors 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.
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.

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Machine Advice with a Warning about Machine Limitations: Experimentally Testing the Solution Mandated by the Wisconsin Supreme Court

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Christoph Engel1, Nina Grgić-Hlača1•
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23 Mar 2021-Journal of Legal Analysis
TL;DR: This article found that 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, but the effect is counterproductive: they follow the advice less if it actually is closer to ground truth.
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.

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References
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01 Jan 2006-Texas Law Review
TL;DR: The normative and positive projects have traveled on largely separate tracks, in part because the forces positive theorists identify as influencing judges commonly are political ones as mentioned in this paper. But the positive project still fails to come to grips with the lessons of positive scholarship.
Abstract: I. Introduction In the legal academy, scholarship about judicial review is predominantly normative. It is largely about how judges should decide cases1 and what posture they ought to take toward the work of other institutions.2 This normative focus on the behavior of judges is common irrespective of whether the intended audience is other academics, political officials, or judges themselves. Outside the legal academy, the interest in how judges behave is more "positive." That is to say, the focus in other disciplines is not so much on how judges should behave, as on how they do and why.3 Positive theorists ask what motivates judges to decide cases as they do and what forces are likely to influence judges' decisions. The normative and positive projects have traveled on largely separate tracks, in part because the forces positive theorists identify as influencing judges commonly are political ones. "Politics" is used here in a fairly capacious sense, referring to any influences on a judge's resolution of a case other than an independent judgment of the law as applied to the facts before the court.4 But the political forces identified by positive scholars are often quite base: Many positive theorists suggest that judicial ideology plays a significant role in how judges decide cases5 and that judges respond to pressures from other political actors.6 Positive scholars believe these forces play a large hand in shaping the content of the law, especially constitutional law. Normative theorists resist the positive project, in large part because political influence of this sort is anathema to prevailing conceptions regarding judicial review.7 Throughout history, and particularly in the last century, the dominant strain of thought in the legal academy has insisted upon theories of judicial review that maintain the separation of constitutional law from politics.8 It is difficult to overstate the force of this ideal, which animates some of our most cherished conceptions-such as judicial independence-and gives rise to some of our most enduring puzzles-such as reconciling the role of a constitutional judge with the practice of democracy.9 Constitutional theory is all about cabining law from politics, both to ensure that judges are constrained by law (and thus do not simply vote their own values) and to prevent politics from influencing law.10 Despite signs that the project of positive scholars is finally finding a warmer reception in the legal academy, the integration of constitutional law and politics remains quite tentative.11 To be sure, some early, important work in the application of positive political theory to legal institutions actually had root in the legal academy,12 and there is a growing niche of legal academics producing quite interesting scholarship at the juncture of constitutional law and positive theory.13 Yet much, if not most, normative constitutional theory-and certainly theory about judicial review-still fails to come to grips with the lessons of positive scholarship.14 Old habits die hard. The thesis of this Article is that normative constitutional theory about judicial review will remain impoverished until it fully embraces the positive project. In pursuing the ideal, normative theorists typically sideline the sort of political influences discussed here.15 For example, in writing about what might be normative theory's most famous constitutional judge, Hercules, Ronald Dworkin recognizes the very practical problems the real-world judge faces, such as the need to obtain the agreement of other colleagues on the Supreme Court or to ensure the implementation of judicial decrees by other governmental actors.16 Yet, Dworkin expressly puts these problems to one side so that Hercules will be "free to concentrate on the issues of principle."17 Granting considerations of principle all the due they properly are owed, it nonetheless is the case that many of the institutional constraints Hercules faces are fixed aspects of our constitutional system that Hercules himself has no choice but to heed. …

63 citations

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