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


Finally, a judge’s choices may mean more or less work, and she may be influenced by the balance of work and leisure.[1] Deciding whether to write decisions, whether to dissent, whether to take up a particular appeal to be heard, and even the overall number of cases to be heard by the court all tilt this balance one way or the other. The balance of work and leisure may also be tipped by the willingness of a judge to rely on signals of the preferred outcome, such as the type and number of interveners in an appeal. Each judge will have her own preference for leisure versus work, but added work has a cost that a judge will take into account to a greater or lesser extent in making different types of decisions.

We assume that a judge will take into account these different factors in making choices, including decisions in appeals. As we will see below, although judges balance these factors in the particular legal context of the appeal, the influence of each factor depends on how the particular court is designed, including both the formal rules and the informal norms. However, before we discuss the design, there is one other point about how each judge reaches a decision. Although we assume judges are essentially rational in how they balance these factors, we will also have to keep in mind two key obstacles facing judges: they are limited in how rational they can be, and they often lack full information about an appeal.[2]

Judges, like all individuals, may not make decisions that are fully rational in all cases, such as where they rely on shortcuts (or heuristics) in making decisions. For example, an individual making a potentially risky decision such as flying on an airplane may feel it is more risky if he has recently heard of a negative consequence to that choice such as an airplane accident. The individual would then be making a choice that he believes is in accordance with his preferences regarding safety, but in fact is not because he has, consciously or not, taken a single instance of a negative outcome as an indicator of the actual probability of that outcome occurring. People face all manner of hurdles to making rational decisions—from a lack of understanding of low probabilities of large harm to being overly optimistic about their own abilities.[3] Judges are similarly impeded in their decision-making, and how the court is set up can aid or hinder them in overcoming these obstacles to rational choices. For example, a judge may not rely as much on mental shortcuts if he has to decide fewer cases in a term.

even if judges were perfectly rational, their decision-making would be hindered by a lack of complete information. Limited information is a long-standing concern in economics—how do individuals make decisions without all the relevant information? A judge may not know whether an individual intended or planned to kill someone, or whether overturning a law against brothels will increase or decrease the safety of prostitutes. Judges are hampered by this lack of information—as Vermeule terms it in relation to statutory interpretation, the task is “judging under uncertainty"[4] Further, different people may view the same facts differently depending on their underlying identity—such as whether there is a scientific basis for claims about climate change.[5] Again, a court’s rules may help or hinder judges with this obstacle such as by permitting interveners that provide useful information beyond that provided by the parties.

  • [1] Epstein, Landes & Posner, Behavior, supra note 1 at 31. Epstein, Landes, and Posner includeleisure as an explicit element in the judicial utility function.
  • [2] See Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of LegalInterpretation (Cambridge, MA: Harvard university Press, 2006) [Vermeule] (in discussingstatutory interpretation, Vermeule argues for an institutional approach given that judges areboth limited in the information they have and their ability to process that information (that is,boundedly rational) at 3).
  • [3] Daniel Kahneman, Thinking, Fast and Slow (№w York: Farrar, Straus and giroux, 2011).
  • [4] Vermeule, supra note 34.
  • [5] Kahan, supra note 31.
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