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Judicial Decision Making: A Dynamic Reputation Approach
Abstract
We seek to contribute to an understanding of how judicial elections affect the incentives and decisions of judges. We develop a theoretical model suggesting that judges who are concerned about their reputation will tend to decide against their prior decisions as they approach elections. That is, judges who imposed a large number of severe sentences in the past and are thus perceived to be strict will tend to impose less severe sentences prior to elections. Conversely, judges who imposed a large number of light sentences in the past and are thus perceived to be lenient will tend to impose more severe sentences prior to elections. Using data from the Pennsylvania Commission on Sentencing, we test, and find evidence consistent with, the predictions of our model.
... Las decisiones de los jueces buscan también cambiar su imagen pública -reputación-con el fin de ser reelegidos -en los casos en los que aplica-o de mejorar su imagen en lo que respecta al papel en su incidencia en la jurisprudencia futura (Baum, 1994). Según Cohen et al. (2015), este modelo es consistente y permite explicar el cambio de preferencias a largo plazo en la cs. ...
... Más interesante es ver su evolución no asumiendo orígenes partidistas, sino después de su votación efectiva en los primeros años. Siguiendo los datos de Kobylka (1989), Craner (2017) y Cohen et al. (2015), el juez Blackmun cambió de preferencias de forma sostenida después de los primeros años. En general, es fácil coincidir con Epstein et al. (1998, p. 805) sobre el error de concebir a las preferencias como estables únicamente considerando que lo que cambian son las actitudes medidas a través del voto. ...
This article analyses two key models of judicial decision-making studies. The aim of this paper is to study the assumptions of the rational choice and attitudinal models in relation to existing studies on the way Justice Harry Blackmun voted during his tenure on the Supreme Court of the United States. In addition, this work analyses four emblematic cases judged by Justice Blackmun, through the perspective of ideological or strategic voting. Theories of voting in judicial behavior presuppose that judicial actors’ decisions are guided by two broad types of rational possibilities: 1) they act strategically when align themselves with the choices of the authority who appoints them to office or on whom their re-election depends; 2) they act out of conviction when, either because of their ideology or because of rulings within the legal technique, they make their decisions. The central thesis of this paper is that the analysis of Justice Blackmun’s vote allows us to redefine, extend or look critically at several of the assumptions of the theories and models.
... We now explore more in depth, what characteristics of the judge, make the sentencing cycle more likely. Cohen et. al. (2015) show that strategic sentencing should be more likely for judges who are usually lenient, as it becomes a way to signal toughness. We explore this link in Figure 2, where on the left panel we restrict the sample to judges below the median in severity, while in the right panel we focus on those above the median. 15 Consistent with the res ...
... 15) show that strategic sentencing should be more likely for judges who are usually lenient, as it becomes a way to signal toughness. We explore this link in Figure 2, where on the left panel we restrict the sample to judges below the median in severity, while in the right panel we focus on those above the median. 15 Consistent with the results in Cohen et. al. (2015), we find that the cycle is only present for judges who are usually less severe. ...
We add to our understanding of the optimal method of judicial selection by exploiting an unusual feature in North Carolina: judges rotate location every 6 months. This allows us to identify the existence and source of sentencing variation over the electoral cycle. We show that when elections approach, felony sentences rise. This increase is found exclusively when judges are sentencing in their district of election, and only when elections are contested. When judges hear cases outside their home district, sentences do not significantly vary over the electoral cycle. Our results show that electoral sentencing cycles can be explained by strategic sentencing by judges in an attempt to please voters. The unique setting allows us to reject alternative behavioral or contextual explanations for the rise in sentences as elections approach. (JEL K42).
... This behavior can result from a desire to appear impartial to home fans, who exert social pressure and control over the referee. This result is consistent with social pressure as an important mechanism in the decisions of impartial judges as documented by Cohen et al. [2015], who find that judges in Pennsylvania tend to decide against their prior record as lenient or harsh before elections. ...
... While the results of Chen et al. [2016] and Cohen et al. [2015] predict alterations in who is favored by individual referee decisions in a sequence of decisions, other literature on the escalation of commitment or sunk costs in sport context may imply that decision-makers do not try to make up for mistakes. Staw and Hoang [1995] find that the opportunity costs of signing a player in the NBA (as measured by the draft order) are a significant factor of playing time and decisions to retain the player, even when player performance is controlled for. ...
This dissertation presents three essays that use experimental or empirical methods to investigate the the impact of incentives and the decision-structure on behavior. Each essay is a self-contained study that contributes to the understanding of human behavior. The first essay (chapter 1) identifies the impact that tracking technology and individual incentives have on human behavior. The second essay (chapter 2) focuses on interventions to induce short-term action for long-term benefits. The third essay (chapter 3) investigates the tendency by decision-makers to compensate potential previous mistakes. In chapter 1, my coauthors and I investigate the impact of tracking technology and individual incentives in a controlled experimental setup. We identify the impact that the team interaction tracking and the individual incentive scheme have on behavior by fixing the experimental conditions and balancing teams across different treatments. Deviating from a standard laboratory experimental setup allows us to credibly manipulate the tracking environment. Since participants in this experiment are allocated to the different teams and treatments by the experimenters, the selection into incentive schemes does not affect the reaction to the incentives. The study not only evaluates the productivity effects of tracking technology and individual incentives, but also identifies effects on stress levels, which can lead to long-term health effects. First, we do not find evidence that team members produce higher output due to individual incentives. However, the results show that the work effort is less specialized as a result of moving from team to individual incentives. We then show that the introduction of tracking technology causes higher stress levels. The results demonstrate that tracking technology can be implemented to monitor teams and set incentives in teamwork. However, the productivity effects of such technology will be limited if incentives are not set optimally. Furthermore, since stress levels increase, the introduction of tracking technology may not pass a cost-benefit analysis if the stress increase leads to large long-term health costs. Chapter 2 reports results from a framed field experiment that identifies the impact nudges have on voluntary actions with a long-term benefit. This experiment is set in the context of a university course. This context allows for the observation of behavior over a full semester, including the final exam. By randomizing students into different groups and sending each group different information emails for exam preparation, the impacts of different nudges on behavior and on exam outcomes is identified. Investigating behavior over the entire semester allows for the differentiation between the short-term reactions to the nudge and the long-term benefits. The results show that reminder nudges can increase exam preparation and lead to considerable improvements in grades. Subgroup analyses suggest that such grade improvements occur for students who achieved better-than-average grades on previous exams, but also for students who did not take a previous test. The results imply that the tracking of student behavior and more targeted interventions to tackle low preparation among some student types may be more effective than general nudges applied to all students. In chapter 3 my coauthors and I analyze decisions by supposedly impartial decision-makers for compensation behavior in response to mistakes. By using data on referee mistakes in the Bundesliga, the highest elite football division in Germany, we evaluate whether referees try to alternate who they favor in close situations. Furthermore, we evaluate whether discretionary decisions such as yellow cards are influenced by previous mistakes. The results indicate that referees compensate a home team for a mistake against it by awarding additional yellow cards to the away team. This represents a form of home bias since no such behavior can be observed following mistakes against the away team. Additional analysis shows that the effects are more pronounced in games that are important to the home team, when the stadium is fully occupied, and when the referee is less experienced. These additional results are consistent with social pressure as an important factor in whether the referee compensates for a previous mistake. In summary, all three chapters provide evidence that humans react to incentives in their every-day environments. These reactions are rational and strategic but can also be influenced by the social context. The methods employed in the different chapters account for the different contexts investigated. The experiment in chapter 1 favors internal validity over generalizability due to the restricted actions investigated. The experiment in chapter 2, in contrast, provides data from a more natural context and allows for the analysis of short and long term effects of the considered intervention. Finally, the data in chapter 3 is collected without an experimental intervention and is thus unaffected by any influences due to the identification method. These methods all have comparative strengths and weaknesses. By combining multiple methods, the chapters in this dissertation demonstrate the wide range of tools available to produce insights into human decision-making processes.
... Exceptions exists in four states (Florida, Nebraska, Tennessee, and California). sentencing decisions (Berdejo and Yuchtman 2013;Lim 2013;Cohen et al. 2015). 6 The ideology of the retention agent (either Governor or median voter) correlates with a high court judge's rulings on partisan cases such as labor-management disputes and environmental cases (Shepherd 2009). ...
The United States is unique in that important actors within the criminal justice system, namely judges and prosecutors, are selected in popular election. Several states are currently adjusting whether political party affiliation is listed on the ballot. Additionally, states differ by how easy it is for candidates from non-dominant parties to gain access to the ballot. We use a laboratory experiment to investigate how these two important policy changes to political competition affect campaign spending and outcomes. Using asymmetric contests designed to capture the institutional change, we find that subjects spend beyond both the socially optimal level and the amount predicted by theory. This over-competition is not uniform, but rather concentrated in those subjects who have the strategic advantage (either dominant-party affiliation or restricted ballot access of competitors). Opening up the election process, therefore, leads to reductions in the wasteful, rent-seeking spending (contrary to theory). Disadvantaged subjects are less likely to exit the race when the election process is opened, as well. Thus, a level playing field promotes participation. Furthermore, we explore heterogeneous treatment effects, finding less campaign spending for risk-loving, non-ambiguity averse, strategically sophisticated, and pro-social subjects. Therefore, elections disproportionately select individuals without these characteristics. Additionally, the mix of those who win the election adjust with changes in the electoral rules as well.
... In Italy, the most obvious problems in the justice system are the court delays (Sobbrio et al, 2009;Bianco et al., 2007). Therefore, the time that judges take to decide on cases has become the theme of policy discussions and polemics (Di Vita, 2012;Cohen et al, 2013). In this respect, many studies (Giacomelli and Menon, 2013) have examined the relationship between growth and the difficulties of the Italian justice system. ...
The recent financial crisis (2008) seriously affected the credibility of European and Italian institutions. It was also characterized by a general pessimism and low expectations of economic operators, especially firms. In literature, relationships between the quality of institutions and economic activities have been widely investigated. They show how the judicial system, the regulatory authorities and governance are important aspects for the quality of institutions.
The main conclusion of existing literature, or the necessity of a reform of judicial system, is the basis of this work. Thus, here there is an attempt to investigate the performances of the judicial system, considering the low and poor level of its effects on firms’ performances. In particular, in this work, there is a simple empirical analysis (data paucity is the big limit) in order to investigate the consequences of an efficient, long-time justice on resilient firms’ confidence and perspective. Those resilient firms, able to overcome the financial crisis, show their ability in surviving, even if justice doesn’t help them.
... Examples are Miceli and Cosgel (1994), Levy (2005), Iossa and Jullien (2012) or Cohen et al. (2015). ...
... These incentives are called reputational incentives, and have been identified and analyzed particularly with reference to the common law jurisdictions (cfr. among others: Posner 1993Posner , 2009Miceli and Cosgel, 1994;Cohen et al., 2013). These types of incentives also seem to be present in the Italian justice system (cfr among others: Marchesi, 2003;Palumbo and Sette, 2006;Szego, 2008). ...
The paper analyses the contribution judges make to the supply of justice in Italian district courts. A Multilevel Growth Model (MGM) was applied to the analysis. The results show several differences in productivity in Italian district courts, which may be linked to (i) differences in the contribution of judges (ii) poor rational organization of resources and/or (iii) a limited use of case management techniques.
We study the circumstances under which public pressure affects judging. We show that crowd pressure biases decisions in favor of the crowd for “subjective decisions” with respect to which the judge has more discretion, but not for “objective decisions.” The bias is strengthened after a judge's error against the crowd, and when errors are costlier to the crowd.
We use data about referees' decisions and errors from the Bundesliga. We exploit three regimes where, due to the introduction of Video Assistance Refereeing (VAR) and COVID-19, both crowd pressure and the likelihood of errors vary.
The importance of understanding the systematic differences between group and individual decisions has been well recognized in the literature. However, the vast majority of empirical evidence on this issue is derived from laboratory experiments, and hence does not reflect professional incentives and career concerns, both of which may play a crucial role. To fill this gap, I exploit a unique regulatory change that exogenously decreased the number of presiding arbitrators from three to one for a specific class of cases in the Financial Industry Regulatory Authority arbitration and an original data set of arbitration awards. The findings indicate that panels of three arbitrators render more extreme “all or nothing” awards compared to sole arbitrators. An arbitrator fixed effects model confirms that this tendency is also present within arbitrators, thus ruling out that the effect is driven by differential selection of arbitrators into panels. Rather, evidence suggests that groups provide individual arbitrators with a “shield of anonymity” which mitigates their concerns about adverse reputational effects of extreme decisions.
Concerns over arbitrator impartiality and independence in ICSID arbitration have led to reform proposals geared towards a multilateral investment court. Due to the ad hoc nature of appointments, it has been suggested that arbitrators may strategically render decisions in biased ways with the goal of encouraging reappointments. Although criticism against arbitrator bias has attracted significant attention, so far limited empirical evidence has been provided to support such concerns. This paper introduces a dynamic perspective to examine concerns of bias arising from ad hoc appointment. I find that contrary to conventional views held by critics of investor-state arbitration, on average, arbitrators tend to decide against their reputation from prior decisions in ICSID arbitration, which implies an effort to establish a reputation for being neutral and unbiased. This finding challenges one of the premises of proposals to replace arbitration with an investment court.
This study examines the role of judges' political affiliation in determining the outcomes of environmental lawsuits filed against public corporations and their economic impacts on the defendant firms. Drawing on legal theories of judicial decision making, individual judges are expected to play an important role in influencing lawsuit outcomes and consequently the sued firms' shareholder wealth. This study employs a hand-collected sample of environmental lawsuits filed in the U.S. Federal District Courts against public firms during 2000–2015, utilizing the random assignment of judges to lawsuits to combat endogeneity concerns. The empirical evidence shows that lawsuits with Republican-appointed judges are approximately 12% less likely to succeed in reaching a settlement compared with those adjudicated by Democratic-appointed judges, holding constant other lawsuit-, judge-, and firm-specific factors. Further, investors of defendant firms react more favorably to the outcome of a lawsuit adjudicated by a Republican-appointed judge compared with a Democratic appointee: the difference of 0.6% of market value during the three-day period surrounding the lawsuit conclusion represents an average saving of approximately $305 million of shareholder wealth. These significant differences are not attributable to alternative explanations, such as other judge idiosyncrasies or firm characteristics, and remain robust to a series of additional analyses. These empirical findings offer new insights into the significant impacts of judge political affiliation on corporate environmental litigation and provide novel evidence on the magnitude of their economic consequences.
The United States is unique in that most states select their prosecutors using popular election. An interesting feature of prosecutor elections is that the pool of potential challengers to an incumbent comes primarily from subordinates within the office. We develop a signaling model that analyzes whether entry into the political race by a subordinate provides voters with useful information. We challenge the commonly held presumption that the election mechanism is ineffective. Exploring the decision of an insider to challenge the boss, we demonstrate that a challenger can strategically convey information about the incumbent's quality by entering the race. Anticipating this, poor incumbents exit. Thus, the model matches empirical observations of rare contested elections and rather modest vacancy rates. Compared to the situation where outsiders challenge the incumbent, the election mechanism is effective.
In the final chapter the author evaluates the results reported previously in relation to personality’s effect on the ability of individuals to understand and engage in politics in a manner consistent with the demands placed upon them as democratic citizens. In addition to summing up the empirical results, the author also discusses where our political system can go from here. Calls for more and better education will continue to have little effect on the average citizen’s overall political knowledge and interest because much of the cause of their apathy is outside of conscious thought. Personality is but one factor found in the hidden depths of the unconscious mind influencing political behavior. Thus, the author takes the baton from Achen and Bartels (Democracy for Realists: Why Elections Do Not Produce Responsive Government. Princeton, NJ: Princeton University Press, 2016) and presents his ideas on how the electoral process should be altered in order to accommodate the way our individual minds really work.
"Get tough" control policies in the United States are often portrayed as the reflection of the public's will: Americans are punitive and want offenders locked up. Research from the past decade both reinforces and challenges this assessment. The public clearly accepts, if not prefers, a range of punitive policies (e. g., capital punishment, three-strikes-and-you're-out laws, imprisonment). But support for get-tough policies is "mushy." Thus citizens may be willing to substitute a sentence of life imprisonment without parole for the death penalty. Especially when nonviolent offenders are involved, there is substantial support for intermediate sanctions and for restorative justice. Despite three decades of criticism, rehabilitation-particularly for the young-remains an integral part of Americans' correctional philosophy. There is also widespread support for early intervention programs. In the end, the public shows a tendency to be punitive and progressive, wishing the correctional system to achieve the diverse missions of doing justice, protecting public safety, and reforming the wayward.
Do the political preferences of U.S. Supreme Court justices change over time? Judicial specialists are virtually unanimous in their response: The occasional anomaly notwithstanding, most jurists evince consistent voting behavior over the course of their careers. Still, for all the research that presupposes the consistency of preferences, it is startling to find that scholars have yet to explore rigorously the assumption of stability. We fill this gap by describing the behavioral patterns of the 16 justices who sat on the U.S. Supreme Court for 10 or more terms, and began and completed their service sometime between the 1937 and 1993 terms. The data reveal that many experienced significant change over time—a result with important implications for virtually all longitudinal work on the Court.
In Pennsylvania, the imposition of mandatory minimum sentences presents an important opportunity to examine relatively “pure” prosecutorial discretion over sentencing outcomes. The authors present a multilevel analysis of the prosecutorial decision to apply a mandatory minimum among mandatory eligible offenders sentenced for drug crimes or as repeat, “three-strikes” offenders. They find that prosecutors’ decisions to apply the mandatory minimum are significantly affected by the type and characteristics of offenses and guideline sentence recommendations, prior record, mode of conviction, and gender. They also find that Hispanic males are more likely to receive mandatory minimums and that Black-White differences in mandatory application increase with county percentage Black. The authors frame and interpret their analysis and findings in light of the uncertainty reduction theory of prosecutorial discretion, the view of courts as communities, and an integrative focal concerns perspective on criminal justice decision-making.
At the heart of attitudinal and strategic explanations of judicial behavior is the assumption that justices have policy preferences. In this paper we employ Markov chain Monte Carlo (MCMC) methods to fit a Bayesian measurement model of ideal points for all justices serving on the U.S. Supreme Court from 1953 to 1999. We are particularly interested in determining to what extent ideal points of justices change throughout their tenure on the Court. This is important because judicial politics scholars oftentimes invoke preference measures that are time invariant. To investigate preference change, we posit a dynamic item response model that allows ideal points to change systematically over time. Additionally, we introduce Bayesian methods for fitting multivariate dynamic linear models (DLMs) to political scientists. Our results suggest that many justices do not have temporally constant ideal points. Moreover, our ideal point estimates outperform existing measures and explain judicial behavior quite well across civil rights, civil liberties, economics, and federalism cases.
Disentangling the effects of various actors on sentencing disparities, I find that prosecutorial charging is likely a prominent source of disparities. Rather than charging mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of the sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, this Article suggests that recent sentencing proposals calling for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.
This paper contains additional details of the data and the estimation of the model in our paper "Preferences and Incentives of Appointed and Elected Public Officials: Evidence from State Trial Court Judges". We describe the details in the following order: (1) the main features of sentencing data and the aggregation procedure, (2) details of the judicial selection systems in Kansas, (3) data on political climate, (4) data on exit decisions, (5) an alternative specification for the reelection probability of appointed judges, and (6) the procedure of counterfactual experiments.
This paper examines how providing litigants with information about arbitrators’ win/loss ratios affects arbitrators’ incentives in deciding the cases before them in an impartial and unbiased manner. We show that if litigants are informed about arbitrators’ past decisions, then arbitrators might want to make an incorrect decision when a correct decision would raise the suspicion that they are biased. Therefore, providing information about arbitrators’ past decisions might create adverse incentive effects and reduce the accuracy of arbitration. We compare the accuracy of arbitrators’ decisions under different arbitrator selection procedures and discuss the implications for the design of arbitration rules by arbitration and dispute resolution providers and by court-administered arbitration programs.
This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the "presumptive sentence" or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference methods that fail to disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and trends. In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to assess Booker's effects on disparities in charging, plea-bargaining, and fact-finding, as well as sentencing. We disentangle background trends by using a rigorous regression discontinuity-style design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S. Sentencing Commission), we find no evidence that racial disparity has increased since Booker, much less because of Booker. Unexplained racial disparity remains persistent, but does not appear to have increased following the expansion of judicial discretion.
This study demonstrates that state supreme court justices are influenced by their specific electoral backgrounds and experiences, as well as general electoral conditions, when voting to uphold or overturn death sentences in the capital murder cases before their courts. Although previous research has established that electoral forces affect justices' decisions not to dissent, this article suggests that electoral variables also influence justices' decisions about who actually wins or loses the cases. On the basis of a probit analysis of death penalty votes in four supreme courts (Kentucky, Louisiana, North Carolina, and Texas) from 1983 through 1988, this study finds that single-member districts, narrow vote margins, being at the end of a term, and experience with electoral politics are associated with support for the death penalty, the position favored by the voters in these states. In addition, the model reveals that prosecutorial experience, term length, and murder rates within states also affect support for the death penalty. Most basically, the goals of judicial actors include personal as well as policy considerations, and the pursuit of these goals is promoted or inhibited by particular types of institutional arrangements.
Various literatures indicate that partisan labels increase the accountability of elected officials. Correspondingly, advocates of nonpartisan elections claim that this procedure helps liberate officials from political influence. These arguments have been prominent in recent debates regarding the selection of judges in U.S. state courts. We suggest, conversely, that on salient issues nonpartisan elections encourage popular judicial decisions, particularly given recent developments in judicial campaigns. To test this hypothesis, we assemble a dataset that revolves around state supreme courts’ decisions on abortion cases between 1980 and 2006. The analysis—which controls for a variety of factors and uses gubernatorial decisions as a comparative tool—provides strong support for the hypothesis.
This study suggests that state supreme court justices act strategically to minimize electoral opposition. In order to appease their constituencies, justices who have views contrary to those of the voters and the court majority, and who face competitive electoral conditions will vote with the court majority instead of casting unpopular dissents on politically volatile issues. Using probit, models were estimated of the effects of several types of electoral forces on death penalty votes from 1983 through 1988 in four southern state supreme courts. Results indicate that single-member districts, beginning at the end of a term, prior representational service, narrow vote margins and experience in seeking reelection encourage minority justices to be attentive to their constituencies by voting in accordance with constituent opinion. In essence, constituency influence in state supreme courts is enhanced by competitive electoral conditions and experience with electoral politics.
In this paper, we explore linkages between electoral politics and judicial voting behavior in the context of models that take into account personal, contextual, institutional, and case-related influences on courts. Using probit (ordered and binary), we examine the votes cast in death penalty decisions by supreme court justices in eight American states from 1983 through 1988. We anticipate and find evidence that institutional features are prominent in shaping the distribution of institutional preferences. Fundamentally, justices have predispositions that are consistent with the states' electoral and ideological environments. Moreover, these institutional arrangements subsequently enhance or restrict opportunities for individual members, once selected, to exhibit their predispositions. Personal preferences notwithstanding, individual justices' support for the death penalty is affected by competitive electoral conditions and institutional arrangements that create linkages with the political environment. Finally, when we control for the effects of personal, contextual, and institutional features, case-specific variables emerge as critical determinants of the judicial vote.
Through their power to sentence, trial judges exercise enormous authority in the criminal justice system. In 39 American states, these judges stand periodically for reelection. Do elections degrade their impartiality? We develop a dynamic theory of sentencing and electoral control. Judges discount the future value of retaining office relative to implementing preferred sentences. Voters are largely uninformed about judicial behavior, so even the outcome of a single publicized case can be decisive in their evaluations. Further, voters are more likely to perceive instances of underpunishment than overpunishment. Our theory predicts that elected judges will consequently become more punitive as standing for reelection approaches. Using sentencing data from 22,095 Pennsylvania criminal cases in the 1990s, we find strong evidence for this effect. Additional tests confirm the validity of our theory over alternatives. For the cases we examine, we attribute at least 1,818 to 2,705 years of incarceration to the electoral dynamic.
A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States’ judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, especially in partisan elections, tend to decide cases in accord with standard Republican policy: they are more likely to vote for businesses over individuals, for employers in labor disputes, for doctors and hospitals in medical malpractice cases, for businesses in products liability cases and tort cases generally, and against criminals in criminal appeals. Judicial behavior is correspondingly liberal for judges facing reelection by Democrats. Moreover, I find evidence that judges change their rulings when the political preferences of the voters change.In addition, my analysis finds a strong relationship between campaign contributions and judges’ rulings. Contributions from probusiness groups, pro-labor groups, doctor groups, insurance companies, and lawyer groups increase the probability that judges will vote for the litigants favored by those interest groups. The results suggest that recent trends in judicial elections - elections becoming more contested, competitive, and expensive - may have upset the delicate balance between judicial independence and accountability. I discuss various policy solutions for reforming states’ systems.
The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually all state supreme court decisions from 1995-1998, this Article provides empirical support for the reformers’ arguments; in many cases, judges seeking reappointment vote even more strategically than judges seeking reelection. My results suggest that, compared to other retention methods, judges facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other government branches. Moreover, judges increasingly favor government litigants as their reappointments approach, which is consistent with the judges voting strategically to avoid reappointment denials from the other branches of government. In contrast, when these judges are in their last term before mandatory retirement, the effects disappear; without retention concerns, these judges are no more likely to vote for government litigants than other judges. My empirical evidence suggests that elective systems are not the only systems that produce bias; appointive systems also threaten judicial independence.
What is the marginal effect of competitiveness on the power of electoral incentives? Addressing this question empirically is difficult because challenges to incumbents are endogenous to their behavior in office. To overcome this obstacle, we exploit a unique feature of Kansas courts: 14 districts employ partisan elections to select judges, while 17 employ noncompetitive retention elections. In the latter, therefore, challengers are ruled out.We find judges in partisan systems sentence more severely than those in retention systems. Additional tests attribute this to the incentive effects of potential competition, rather than the selection of more punitive judges in partisan districts.
The premise of this paper is that while the comparative study of courts can address some vitally important questions in judicial politics, these gains will not be secured without a valid and reliable measure of judge preferences that is comparable within and across courts. Party affiliation of judges is a commonly used but weak substitute that suffers from pronounced equivalence problems. We develop a contextually based, party-adjusted surrogate judge ideology measure (PAJID) and subject this measure to an extensive array of validity tests. We also consider the measure's stability in predicting judge behavior over the course of the judicial career. As the results illustrate, PAJID offers a valid, stable measure of judge preferences in state supreme courts that is demonstrably superior to party affiliation in analyses of judicial decision-making across areas of law and across 52 state high courts.
Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.
Personalized and continuing relationships play a central role in any society. Economists have built upon the theories of repeated games and reputations to make important advances in understanding such relationships. Repeated Games and Reputations begins with a careful development of the fundamental concepts in these theories, including the notions of a repeated game, strategy, and equilibrium. Mailath and Samuelson then present the classic folk theorem and reputation results for games of perfect and imperfect public monitoring, with the benefit of the modern analytical tools of decomposability and self-generation. They also present more recent developments, including results beyond folk theorems and recent work in games of private monitoring and alternative approaches to reputations. Repeated Games and Reputations synthesizes and unifies the vast body of work in this area, bringing the reader to the research frontier. Detailed arguments and proofs are given throughout, interwoven with examples, discussions of how the theory is to be used in the study of relationships, and economic applications. The book will be useful to those doing basic research in the theory of repeated games and reputations as well as those using these tools in more applied research. Available in OSO: http://www.oxfordscholarship.com/oso/public/content/economicsfinance/0195300793/toc.html
Objective. Capitalizing on attention directed to judicial agreement and the associated consequences of judicial elections, this article conducts an examination of the effects of seniority and state methods of judicial retention on decisions by state supreme court justices to dissent.
Methods. Using data drawn from the State Supreme Court Data Archive, this research analyzes decisions by individual justices to dissent in 33,582 tort cases from 1995 to 1998. GEE logistic analysis with cases as the clustering unit is the estimation procedure.
Results. While the seniority of justices is positively connected to dissent, the findings illustrate that seniority's effect is nuanced and conditioned by a state's method of judicial retention. The impact of a justice's seniority relative to his or her colleagues is most powerful in appointive courts where justices serve without fear of electoral retaliation. Alternatively, within elective courts, justices respond to elections by pursuing a consensual approach regardless of their seniority.
Conclusion. The dissent characteristics of justices in state supreme courts are intricately tied to the length of careers and the methods by which states keep justices in office.
This study shows that the political preferences of those responsible for retaining judges are strongly associated with judicial voting. The evidence supports the widespread belief that judges respond to political pressure in an effort to be reelected or reappointed. Using a data set of decisions in state supreme courts from 1995-98, I find that state supreme court judges who face retention decisions by Republicans tend to decide cases in accord with standard Republican policy. Judicial behavior is correspondingly liberal for judges facing retention decisions by Democrats. The results are strongest for judges facing partisan reelections. Among judges with conservative fundamental ideologies, those facing Democratic retention agents vote more liberally than those facing Republican retention agents. Similarly, judges' voting changes when the political preferences of the retention agents change. Judges with permanent tenure and judges in their last term do not respond to the same forms of political pressure. (c) 2009 by The University of Chicago. All rights reserved..
This paper empirically documents one way in which prosecutorial discretion may be used to dampen the effects of mandatory minimum sentencing laws. Specifically, prosecutors can use their discretion over prosecution charges to circumvent a mandatory minimum sentencing law for some defendants by prosecuting defendants who were initially arrested for the crime targeted by the sentencing law for lesser crimes not covered by the law. I document the use of such discretion with respect to several state "three-strikes"-type repeat-offender laws imposed throughout the 1990s, and I find that prosecutors become significantly more likely to lower a defendant's prosecution charge to a misdemeanor when conviction for the initial felony arrest charge would lead to sentencing under a three-strikes law. Moreover, accounting for such behavior is important, as I show that failure to do so can lead to overstating the effects of these laws on average sentencing by almost 30 percent.
We construct a model where the reputational concern of the long-run player to look good in the current period results in the
loss of all surplus. This is in contrast to the bulk of the literature on reputations where such considerations mitigate myopic
incentive problems. We also show that in models where all parties have long-run objectives, such losses can be avoided.
Games in which one party conveys private information to a second through messages typically admit large numbers of sequential
equilibria, as the second party may entertain a wealth of beliefs in response to out-of-equilibrium messages. By restricting
those out-of-equilibrium beliefs, one can sometimes eliminate many unintuitive equilibria. We present a number of formal restrictions
of this sort, investigate their behavior in specific examples, and relate these restrictions to Kohlberg and Mertens' notion
of stability.
The sentencing decisions of trial judges are constrained by statutory limits imposed by legislatures. At the same time, judges
in many states face periodic review, often by the electorate. We develop a model in which the effects of these features of
a judge's political landscape on judicial behavior interact. The model yields several intriguing results: First, if legislators
care about the proportionality of punishment, judicial discretion increases with their punitiveness. Second, voters are limited by two factors in their ability to make inferences about judicial preferences
based on observed sentences: the extent to which judges are willing to pander to retain office and the range of judicial discretion
mandated by the legislature. Finally, legislators can sometimes manipulate judicial discretion to aid sufficiently like-minded
voters in their efforts to replace ideologically dissimilar judges.
We argue that partisan elected judges have an incentive to redistribute wealth from out-of-state defendants (nonvoters) to in-state plaintiffs (voters). We first test the hypothesis by using cross-state data. We find a significant partisan effect after controlling for differences in injuries, state incomes, poverty levels, selection effects, and other factors. One difference that appears difficult to control for is that each state has its own tort law. In cases involving citizens of different states, federal judges decide disputes by using state law. Using these diversity-of-citizenship cases, we conclude that differences in awards are caused by differences in electoral systems, not by differences in state law. Copyright 2002, Oxford University Press.
To understand policy-motivated behavior of Supreme Court justices it is necessary to measure their policy preferences. To date, most scholars have assumed the policy preferences of Supreme Court justices remain consistent throughout the course of their careers, and most measures of judicial ideology such as Segal and Cover (1989) scores are time invariant. This assumption is facially valid; Supreme Court justices serve with life tentre, and are typically appointed after serving in other political or judicial roles. However, it also possible that the world views, and thus policy preferences, of justices evolve through the course of their careers. In this paper we use a Bayesian dynamic ideal point model to investigate preference change on the Supreme Court that allows for justices' ideal points to change over time in any smooth fashion. We focus our attention on the sixteen justices who served for ten or more terms and completed their service between 1937 and the present. The results are striking fourteen of these sixteen justices exhibit significant preference change.