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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


People often care a lot about their reputation, and it may drive their choices. As we saw, an individual cares about how a choice will affect her reputation because others may think better or worse of her or may interact with her differently. A judge may care about how a particular decision will look to many different groups—what Baum calls “audiences”[1] For our purposes, we can separate these audiences into two groups: internal and external to the court.

The internal audience is other judges on the court. A judge may be concerned about how the other judges will react to the actual policy decision resulting from her preferred choice.[2] She may care also about how the other judges will perceive a judge who votes for her own policy preference despite a cost to the legitimacy of the court. Further, she may care about collegiality—that is, the extent to which she is viewed as seeking consensus or always dissenting. A judge’s choices may impact not only what other colleagues think of her but also opportunities for her to cooperate with or persuade other judges in future cases.

A judge’s external audience consists of those outside of the court, which includes a very broad range of possible groups. A judge who wishes to be viewed positively by the legal profession may be less likely to decide in accordance with her preferred policy position, if she thinks doing so would be viewed unfavorably. She may also be concerned about how she is perceived by her family or by political or interest groups—anything from the Chamber of Commerce to Friends of the Earth. Again her choices may influence the esteem in which she is held or possible future opportunities such as working as an arbitrator or on corporate boards or giving lectures after she leaves the court. In addition, a judge may be concerned about her reputation with legislators or the executive if it may impact future opportunities such as being promoted to the position of chief justice. More broadly, a judge may care about her legacy, wanting to be remembered as being on the “right side of history”

  • [1] Lawrence Baum, Judges and Their Audiences (Princeton, NJ: Princeton UniversityPress, 2008).
  • [2] Epstein, Landes & Posner, Behavior, supra note 1 at 42-43.
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