The Behavior of Federal Judges

Chapter 1
A Realistic Theory of Judicial Behavior

INTRODUCTION

In a recent book one of us listed and summarized nine theories of judicial behavior,1 but then proceeded to integrate them into a single theory, that of the judge as a participant in a labor market—that is, as a worker. That is the approach we take in this book to creating a model of judicial behavior that generates hypotheses testable with data.

What kind of worker is a judge? Well, he is not a freelance writer, a proprietor, a composer or other independent artist, or an entrepreneur; he is a government employee. In economic terms he is an agent; the government is the principal. To understand an agent's behavior requires understanding his incentives and constraints, some personal and others imposed by the principal.

Empirical research cannot be conducted in a vacuum. The researcher has to have an idea of what facts about a matter are interesting, and theory may help him to identify those facts. We think the most fruitful theory to guide empirical study of judicial behavior is one of self-interested behavior, broadly understood, in a labor-market setting. Our premise is that judges, at least in case law systems, which are characteristic of nations that derive their legal systems from England, are not calculating machines. Judges in a system that allows them a good deal of discretion, by granting them (in the case of federal judges) secure tenure but not providing rules of decision that make judging the mechanical application of rules to facts in all cases, are best understood as imperfect agents of a diffuse principal.

1 Richard A. Posner, How Judges Think, ch. 1 (2008).