JUDGE MADE LAW
Paul H. Rubin
Department of Economics, Emory University
© Copyright 1998 Paul H. Rubin
A major positive claim in the law and economics literature, due first to Posner,is that the common law is economically efficient. However, mechanisms toexplain this putative efficiency are lacking. Posner's hypothesis is that judgesgain utility from efficient decisions, and are constrained so that other decisioncriteria are limited. Evolutionary models of the law were devised to provideanother mechanism for such efficiency, but these models, while proving veryuseful for some purposes, have not achieved this goal. Indeed, there are nowevolutionary models of legal change driven by rent seeking by lawyers andothers which lead to inefficient results. There is also a literature on multi-judgeinteractions, showing conditions under which such interactions will or will notlead to consistent results.
'At the heart of economic analysis of law is a mystery that is also anembarrassment: how to explain judicial behavior in economic terms...'Posner (1993, p. 2).
JEL classification: K00, K41
Keywords: Common Law, Judges, Legal Evolution, Legal Efficiency, Efficiencyof the Common Law
As the excerpt beginning this section indicates, explanation of the behavior ofjudges is one of the most important but also most difficult problems facing lawand economics scholars. This is because judicial opinions are the result of utilitymaximizing behavior and economists are unable to specify the details of judges'(or anyone else's) utility functions. Consequently, it has proven difficult todevelop a theory that explains why judges make the decisions that we observe,though, as we discuss below, many have tried. Because of the difficulty ofexplaining decisions in terms of utility functions, there have also been attemptsto use evolutionary models to explain outcomes. In these models, the form of lawis due to factors involving wealth maximizing behavior of actors in the legalprocess such as litigants or attorneys, and judges play a minor role.
The structure of this entry is as follows: I first consider briefly argumentsregarding the efficiency of common law. I then discuss utility maximizing modelsof judicial behavior. I next then consider the evolutionary models. The followingsection discusses models of multi-judge behavior.
A basic question for law and economics is the efficiency of law. Hayek, (1960)and Hayek (1973), although writing before the law and economics movement andwriting from another perspective, had argued that common or judge made lawwas better than statute law; see Christinasen (1990) for an attempt to reconcileHayekian arguments with law and economics. More recently, Posner (1992) hasof course argued often and forcefully that the common law is efficient. Hisarguments are based on examination of particular legal doctrines. The difficultyof this method is that often the conclusion regarding the efficiency of aparticular rule depends on unmeasured transactions costs of various sorts; ifPosner's intuition about relative magnitudes of costs is incorrect, then doctrineshe claims are efficient may not be so. Nonetheless, his analysis has been theintellectual spark behind the growth of law and economics, and questions ofefficiency of the sort he was the first to raise have dominated the literature.Much of this literature may be considered as detailed attempts to answer thepositive efficiency question first posed by Posner, and much of the rest aims atderiving normative conclusions as to what is efficient.
Others are less certain that common law is efficient. Tullock (1971) andTullock (1980) has long argued that the English common law process is lessefficient than Continental processes. Rizzo (1980a) and Rizzo (1980b) argues froman Austrian perspective that the amount of information needed for judges toachieve efficiency is excessive, although Rubin (1980) in a critique argues thatRizzo's criticism might apply to efficiency in all of economics, not merely in lawand economics. Aranson (1992) argues that it is impossible for judges to seekefficiency because the calculations required are equivalent to those required tomake central planning work. Hadfield (1992) has argued that because judges seeonly a biased sample of potential cases, depending on the rules in existence, itis impossible for judges to move towards efficiency, even if they desire to do so.
Much of the literature in law and economics consists of attempts to examineparticular legal doctrines and attempt to determine if they are efficient. (Much ofmy own work is of this type; see for example Rubin (1983).) This is method ofanalysis is fundamentally different from efficiency analysis in other branches ofeconomics. There, a process (market competition) is postulated and it is shownthat the process leads to efficient outcomes. Economists do not generallyexamine consumers to see if they are equating ratios of marginal utilities toprices, or firms to see if they are charging marginal cost. Rather, the process bywhich outcomes are generated is shown to lead to efficiency. It is for this reasonthat many economists are uncomfortable with the efficiency arguments of lawand economics. Nonetheless, because this is the standard method in law andeconomics, any analysis of the efficiency of any particular body of law can beconsidered as evidence for or against Posner's hypothesis. If some law is foundefficient, then this is evidence for the hypothesis. If some law is foundinefficient, or if there are proposals for reform, then this is evidence against thehypothesis. In this sense, all of law and economics is aimed at testing thisfundamental hypothesis.
Scholars are of course aware of this difficulty, and have sought to identifya process that would lead to efficiency. The two candidates are utilitymaximization by judges and evolutionary models. I discuss each. As we will see,there is no definitive demonstration in the literature of a mechanism that wouldlead to efficiency. This has led many to conclude that the law is not so efficientas Posner believes.
The first argument regarding utility maximization by judges was in Posner (1992);first edition, 1973. The argument (elaborated in Posner (1993)) is that judges areso insulated from personal factors and from interest group and other pressuresthat the only remaining decision factor is efficiency. The only other candidateis income redistribution, and judges lack the tools needed for suchredistribution. This explanation was and is not terribly convincing to economistsbecause it ultimately relies on judicial tastes for efficiency and economists prefernot to explain behavior on this basis.
There have been some attempts to model judicial utility functions in terms ofeconomically relevant and observable variables. The first such effort was byHiggins and Rubin (1980). They argued that promotion to a higher position wasan element of judicial utility functions, that promotion was more likely if thejudge was reversed less, and that the value of promotion was reduced as thejudge became older. However, in their sample they were unable to find anyrelation between age or any other factor and reversal, and only a weak relationbetween reversal and promotion.
In two articles, Cohen continued to examine promotion possibilities forfederal judges. His argument was that if the Justice Department recommendeda judge, then promotion was more likely. In Cohen (1991) he examined voting onthe constitutionality of the U.S. Sentencing Commission and found that judgesvoting for constitutionality were more likely to be promoted; the JusticeDepartment favored this position. In Cohen (1992) he found that judges whoimposed more severe antitrust sanctions, again in line with the desires of theDepartment, were more likely to be promoted. Thus, there is evidence for normalutility maximization by judges. The problem is that it is difficult to see how theseresults generalize to explain other types of decisions, including common lawdecisions. Macey (1994) has argued that many rules of procedure are aimed atmaximizing judicial utility - for example by emphasizing procedure, where judgeshave a comparative advantage, over substance, where they do not.
Landes and Posner (1980) examined differences between state court judgesand federal court judges. Their hypothesis was that since Federal judges arepaid more and have life tenure, we would expect higher quality people to occupythese positions and write better opinions. Their measures of quality had to dowith citations to opinions as discussed in Landes and Posner (1976) and withuse of opinions in legal casebooks. Except for the last measure, they found littledifference. Other variables such as age and the political party appointing thejudge also had little influence. Ashenfelter et al. (1995) examined the extent towhich judicial decisions are influenced by political party appointing the judgeand other elements of the judges' personal background. They find little or noinfluence. Thus, if we believe that these characteristics influence the judges'utility function, this may be taken as an argument that this aspect of utility haslittle impact.
It is apparent that there is little evidence regarding the effect of utilitymaximization on the mass of case outcomes. This is clearly an area for futureresearch.
The evolutionary models are attempts to explain judicial behavior without resortto utility functions. Initially, these models aimed at explaining Posner's putativeobservation that the common law was efficient. It is fair to say that the modelsfailed in this endeavor, perhaps because the law is not so efficient as Posnerargued. Nonetheless, these models have had an important impact on theliterature because they have called attention to forces other than judicialpreferences in explaining the law. The evolutionary models are ultimately basedon the model of the litigation process first set forth by Landes (1971).
The first paper applying an evolutionary model to the common law wasRubin (1977). Following Landes (1971) Rubin argued that most cases are settled,rather than litigated, and that it is only litigated cases that can lead to legalchange. Cases are settled when the expected value to the plaintiff of a case isless than the expected cost to the defendant, which is generally true if stakes aresymmetric. However, inefficient laws can sometimes create asymmetric stakesbecause the inefficiency means that there are deadweight losses than cannot bebargained away in the settlement process. That is, an inefficient rule creates aloss to one party that is greater than the gain to the other because of futurestakes in similar type cases. Thus, litigation becomes more likely when rules areinefficient, and so inefficient rules are subject to greater selection pressure, andmore likely to be overturned. (Note that this model, like many of its successors,depends on parties having ongoing interests in disputes of a certain sort, ratherthan merely in the matter at hand.)
Following this initial contribution were several extensions and modifications.Priest (1977) argued that inefficient rules generated larger stakes and so weremore likely to be litigated, again subjecting them to increased selection pressure.Goodman (1979) argued that efficient precedents were worth more to parties whowould benefit than inefficient precedents were worth to their beneficiaries, andthat parties to whom a decision was worth more would spend more litigating andso would be more likely to win. In other words, efficient precedents were morelikely to win in litigation and survive than were inefficient precedents. Katz(1988) expanded on this notion in the context of presenting a model of litigationexpenditures. Terreborne (1981) also presented a model of efficient legalevolution.
Other scholars began critically examining these models. Landes and Posner(1979) in a symposium paper published in the Journal of Legal Studies arguedthat the earlier models had erred by modeling precedent as an all or nothingissue, when the proper question was whether a precedent was stronger orweaker. That is, litigation might strengthen or weaken a precedent withoutoverturning it completely. Thus a party with an interest in overturning aninefficient precedent would also have to consider the possibility that litigationcould strengthen as well as weakening the precedent. This consideration greatlyweakens the evolutionary pressures for efficiency. Parsons (1983) combinedPriest's point (that inefficient precedents would lead to increasing litigation) withthe Landes and Posner point (that precedents that were litigated might becomeentrenched) to argue that there is a tendency for the common law to become'reckless' - to favor rules that inefficiently lead to increased accidents.
Cooter et al (1979) presented a model in which movement towards efficiencycould only occur if judges sought such a movement. In a more elaborateexamination of the issue, Cooter and Kornhauser (1980) present a complexevolutionary model in which there are some tendencies towards efficiency, butin which both efficient and inefficient rules will be observed at any time. Thismodel, and alternative definitions and implications of efficiency, are discussedin Kornhauser (1980). Von Wagenheim (1993) presents a model with similarresults.
Hirshleifer (1982), building on Rubin's discussion of inefficiency when stakesin precedent are asymmetric, provided what may be the most useful andinfluential criticism of the evolutionary models. Recall that in the original Rubin(1977) model and in some others, including Goodman (1979) and Landes andPosner (1979) evolutionary forces moved the law towards efficiency only if theparty with an interest in efficiency had an ongoing interest in the form of he law.Hirshleifer generalized this point to show that the law could come to favorwhichever party could most easily organize and mobilize resources for litigationof unfavorable precedents. This movement would be independent of efficiency.Rubin (1982) uses this point to argue that common law was more like statute lawthan many want to admit: interest groups could use either common or statute lawto achieve their goals. He argued that the apparent efficiency of the common lawwas because most common law was developed at a time when organization ofinterest groups was expensive, and that more recently both common and statutelaw have been subject to interest group pressures. Crew and Twight(1990)expanded on this point and found common law less subject to rent seekingthan statute law. Rowley and Brough (1987) find that contract and propertymight be expected to be efficient, but not tort. Bailey and Rubin (1994) haveextended this theme in a formal model of the influence of interest groups on thelaw, and Rubin and Bailey (1994) have shown that plaintiffs' attorneys have beenresponsible for the shape of modern tort law, using an evolutionary mechanismto shape the law. An interesting question worthy of future exploration is theextent to which other interest groups have found litigating for precedentworthwhile.
Heiner (1986) explains stare decisis and other features of the law as a resultof human imperfect decision making. Because attempt to achieve optimality ineach decision might lead to erroneous decisions in many cases, it may be moreefficient to rely on rather simple rules that minimize the potential costs of error.
An interesting set of hypotheses regarding legal evolution is in Roe (1996).Roe argues that the notion of evolution towards efficiency is an importantdeterminant of legal form, but it is not the only determinant. He incorporatesthree subsidiary notions into an efficiency framework - the importance of initialconditions (borrowed from chaos theory), path dependence, and evolutionaryaccidents. The result of these processes would be that laws would be well butnot perfectly adapted. However, while these notions are interesting, as Roehimself admits, they do not as of yet provide refutable hypotheses. It would beinteresting to see if these propositions can be generalized to provide someimplications.
What can we say about the evolutionary models? They have not succeededin the original task of providing an explanation for common law efficiency.However, by demonstrating the difficulty of achieving this goal, they havehelped understand when the law may be efficient and when it is likely not to beefficient. Moreover, an important component of the evolutionary models wastheir focus on the litigation decision as driving legal evolution. Other models oflegal evolution, both economic and non-economic, either leave mechanisms forevolution unspecified or assume that the preferences of judges are the drivingforces. The economic models were the first to focus on the motives of litigants,realizing that judges can decide only those cases that come before them.
As Elliott (1985, p. 71), in an important study of the history of evolutionarymodels, indicates: 'Moreover, the economic school of evolution has broadenedour view of the legal system to include the role of litigants, as well as judges, inmaking law.' The literature associated with Priest and Klein (1984) on selectivitybias in case selection is a result of the focus on litigants' decisions, which hascome out of the evolutionary models; for a discussion, see Priest (1980). (For ananalysis of theories of legal evolution from 1880-1940 (which thus omits analysisof the economic theories) see Hovenkamp (1985).)
Aranson (1986) summarizes the assumptions of several of the evolutionarymodels. He shows that many combinations of assumptions have not beenexamined, and thus provides clues for further research. There is much usefulresearch to be done on evolutionary models of legal change.
Matters become more complex when more than one judge is involved in adecision or sequence of decisions. Multiple judges may be involved because ajudicial panel may consist of more than one judge; because different judges mayhear similar cases at different times; or because the appellate process mayinvolve judges at different levels of a judicial hierarchy hearing the same case.
One issue that appears when panels of judges hear a matter is the potentialfor inconsistency. Easterbrook (1982) was the first to point out that the Arrowtheorem (which shows that there is no way of aggregating preferences that isnot subject to some flaw, and that, for example, majority voting can lead tocycles: A defeats B, B defeats C, C defeats A) also applies to judicial voting; seealso Easterbrook (1984).
Kornhauser has written extensively on issues that arise in multi-judgesettings, both alone and with Sager. Kornhauser and Sager (1986) apply theCondorcet Jury Theorem to the context of judicial panels and show thatincreasing the number of judges on a panel will increase the accuracy of theoutcome. In addition, they argue that multi-judge panels can act consistently (inthe sense of avoiding cycles) but that multi-judge panels may act incoherently,in the sense that the pattern of decision will not satisfy community principles ofcoherent explanation.
In two related papers (Kornhauser (1992a), Kornhauser (1992b)) Kornhauserinvestigated several additional characteristics of collegial courts. He emphasizedthe dichotomous nature of common law adjudication. He argued further judgeshad to respect the results rather than the rules or rationales of prior decisions.In this context, he showed that, except under implausible conditions, a legalsystem will be path dependent; that is, the state of the law at any time will be aresult of the order in which the court has heard disputes. This path dependence,however, will not lead to inconsistency if the legal system observes strict staredecisis.
Next, Kornhauser observed that common law practice incorporates twodistinct ways of aggregating judgments of multiple judges: courts may resolvematters on a case-by-case or on an issue-by-issue basis. Kornhauser shows thatthere is a 'doctrinal paradox' in that these two methods may lead to differentoutcomes. He shows that the doctrinal paradox is distinct from the Condorcetparadox. Kornhauser and Sager (1993) extend the analysis of the doctrinalparadox in several ways. They observe, for instance, that in actual practice eachjudge decides how to aggregate the votes of other members on the court andthat this may affect the outcome.
Kornhauser (1995) considers the hierarchical structure of courts systems. Itexplains many of the features of the U.S. judicial system through a simpleproduction model. Kornhauser assumes that judges in the system form a team,in that all want the same goal, the maximization of the 'number of correct answerssubject to its resource constraint.' Then the structure of the production functionexplains the pattern of precedent observed and the specialization of trial courtsto fact finding and appellate courts to review of law. Other features, such as thelack of specialization of courts by subject matter, are not explained by the model.
Miceli and Cosgel, (1994) and Rasmusen (1994) have argued that judges'behavior is based on a tradeoff between writing decisions they prefer and thepossibility of reversal, either by higher courts or by future judges. O'Hara (1993)analyzes why appellate judges choose to follow precedents in the absence ofany formal rule mandating adherence to precedent. She explains this behavioras the result of a repeated game between different appellate judges, each ofwhom follows the precedents established by his or her colleagues' decisions inorder to avoid triggering a 'punishment' phase. In this punishment phase theprecedents established by the errant judge's decisions are ignored by his or hercolleagues. Shavell (1995) argues that the structure of the appellate process isa low cost method of error correction, since only a subset of cases are examinedfor error through an appeal.
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