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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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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
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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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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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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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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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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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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Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior

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Are Appointed Judges Strategic Too

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Joanna Shepherd
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TL;DR: Shepherd et al. as discussed by the authors used a data set of virtually all state supreme court decisions from 1995-1998 and found that judges seeking reappointment vote even more strategically than judges seeking reelection.
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Nils A. Engstad, Astrid Lærdal Frøseth, Bård Tønder
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TL;DR: The Norwegian Association of Judges' 100th anniversary book as mentioned in this paper focuses on the independence of judges and the relationship of the judiciary to the legislative and executive powers, and the challenges posed by a multicultural society.
Abstract: This anniversary book, published in honour of the 100th birthday of the Norwegian Association of Judges, focuses on the independence of Judges. The independence of judges encompasses a variety of problematic aspects. A key element is the relationship of the judiciary to the legislative and executive powers. What does it mean that judges should be independent, and what is the basis of this principle from a judicial point of view and from the perspective of the history of ideas? What are the international trends in this field? How do lawyers, prosecuting authorities and social scientists view this principle? What challenges are posed by a multicultural society? How should the principle be adapted to today's media society? The Norwegian Association of Judges invited authors with special expertise and insight in these areas to cast light on the subject. The result is a complete and up to date book on the subject, that should be of interest to an international readership.

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Journal Article•
Judges as Altruistic Hierarchs

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Lynn A. Stout
01 Mar 2002-William and Mary law review
TL;DR: In this paper, the authors suggest an alternative approach to explain why judges are motivated to do a good job of judging, and suggest that the quest for prestige, the fear of reversal, the hope of higher appointment, or concern for one's reputation are unimportant judicial incentives.
Abstract: Judges are hierarchs. By this, I mean that judges in our society enjoy positions of unusual authority associated with four important characteristics. First, judges possess remarkable power to decide the fates and fortunes of others. Second, they possess this power not because they have purchased it in the market or acquired it by force, but because they have been selected to receive it, sometimes by the very persons whose fates and fortunes they will decide. (1) Third, judges are expected to use their power not to pursue their own interests--which would be viewed as an abuse of power--but to serve the social goal of the fair and impartial application of law. (2) (One can of course argue over where judges should look to find the law--indeed, this is a central problem in jurisprudence--but whatever "the law" is, it is commonly understood that it is normatively desirable that judges follow it). Fourth, judges are expected to serve this social goal faithfully, even though they have remarkably little financial incentive to do so. The federal judiciary offers a striking example of this pattern. At both the trial and the appellate levels, federal judges enjoy enormous discretion to determine the outcomes of the cases before them. (3) They enjoy this authority because they have been appointed by the President with the advice and consent of the Senate. (4) They are expected to use their judicial powers to decide disputes fairly and according to law, even though they receive no significant external rewards when they do so, and suffer no significant external punishments when they do not. It is this last aspect of judges' hierarchical status that I find especially intriguing and troubling, and it is the focus of this discussion. Consider the monetary incentives faced by the typical member of the federal judiciary. A federal judge has a job for life, and she cannot be removed from it unless she indulges in the most egregious forms of conduct. (5) As a matter of law, her salary is fixed by Act of Congress; it can neither be increased to reward superlative effort, nor cut to punish inferior performance. (6) As a result, federal judges operate in a world where monetary carrots and sticks are notably lacking. Indeed, if one looks only at financial incentives, it is difficult to explain why most federal judges do not simply decide their cases by flipping a coin, and then take the rest of the day off and go fishing. (7) Contemporary scholars, faced with this lacuna, have had to employ a great deal of imagination to explain why judges might in fact perceive it as in their self-interest to do a good job of judging. (8) For example, in one early and pioneering article on the subject, Robert Cooter argued that judges are motivated by the desire to enhance their prestige among lawyers and litigants. (9) Other commentators have hypothesized that judges might expend effort because they hope to be appointed to a higher court, fear being reversed by a higher court, are concerned about their reputations among their fellow judges, or have a general desire to exercise influence (10) and "have an impact for the sake of having an impact." (11) Judge (formerly Professor) Richard Posner has argued that, in addition to these concerns, judges may also get utility from playing the judicial "game" according to its rules. Posner posits that judges may decline to decide cases on personal whim for the "same reason that many people do not cheat at games even when they are sure they can get away with cheating. The pleasure of judging is bound up with compliance with certain self-limiting rules that define the `game' of judging." (12) In this discussion, I suggest an alternative approach. In offering this alternative, I do not intend to suggest that the quest for prestige, the fear of reversal, the hope of higher appointment, or concern for one's reputation are unimportant judicial incentives. …

6 citations

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