Judicial Reputation

A Comparative Theory

Nuno Garoupa, Tom Ginsburg

• Publisher: University of Chicago Press
• Year: 2015
• ISBN:
  9780226290621
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Judges are society's elders and experts, our masters and mediators. We depend on them to dispense justice with integrity, deliberation, and efficiency. Yet judges, as Alexander Hamilton famously noted, lack the power of the purse or the sword. They must rely almost entirely on their reputations to secure compliance with their decisions, obtain resources, and maintain their political influence.In Judicial Reputation, Nuno Garoupa and Tom Ginsburg explain how reputation is not only an essential quality of the judiciary as a whole, but also of individual judges. Perceptions of judicial systems around the world range from widespread admiration to utter contempt, and as judges participate within these institutions some earn respect, while others are scorned. Judicial Reputation explores how judges respond to the reputational incentives provided by the different audiences they interact with—lawyers, politicians, the media, and the public itself—and how institutional structures mediate these interactions. The judicial structure is best understood not through the lens of legal culture or tradition, but through the economics of information and reputation. Transcending those conventional lenses, Garoupa and Ginsburg employ their long-standing research on the latter to examine the fascinating effects that governmental interactions, multicourt systems, extrajudicial work, and the international rule-of-law movement have had on the reputations of judges in this era.

ONE

A Theory of Judicial Reputation and Audiences

In 2013, reflecting on the controversial decision in Bush v. Gore in which the Supreme Court effectively awarded the presidency to George W. Bush, former justice Sandra Day O’Connor reflected, “Maybe the Court should have said, ‘We’re not going to take it, goodbye.’” Her reasoning was that the decision “gave the Court a less than perfect reputation.”1 The dissenters in the case had predicted as much; Justice Stephen Breyer warned that the decision might become a “self-inflicted wound.”2 In fact, however, the reputation of the court largely survived the controversial case, in part because different audiences reacted differently: perhaps unsurprisingly, views of the court improved among Republicans and declined among Democrats.3

Reputation is crucial in many arenas, and judging is no exception. A judge with a good reputation will enjoy the esteem of his friends and colleagues and may have chances for advancement to higher courts. He might become internationally renowned, such as former Israeli Supreme Court Justice Aharon Barak or US Appeals Court Judge Richard Posner. If particularly well known, he will have a legacy that endures long after death, like US Supreme Court justices John Marshall, Earl Warren, or Oliver Wendell Holmes. A judiciary that operates effectively will earn respect within its own political system and internationally and may become a model for other countries, providing opportunities for judges to travel. A judiciary with a poor reputation, in contrast, will find itself starved of both resources and respect.

Despite the sense that reputation is important, we know very little about how judicial reputation is produced. We understand that some judges and judiciaries are viewed as successful and others are not, but we do not really have any theories about how reputation is developed and sustained. In this chapter, we use economic analysis to provide a theory of judicial reputation and provide evidence of the institutional consequences from a range of legal systems.

We define reputation as the stock of assessments about an actor’s past performance. The object of our analysis is to explore how reputation is formed or produced, the mechanisms by which reputation is achieved, and the institutional incentives that reinforce or harm judicial reputation. We do not discuss whether reputation is a good or a bad thing, whether individual reputation is better or worse than group reputation, or whether individual visibility and exposure enhance creativity and legal change in more appropriate ways than group-focused professional environments. Nor is our analysis normative. Our concern in this chapter is to understand how different institutional configurations facilitate different modes of producing reputation, which impact professional norms and the position of judges in society.

Reputation matters because, in the real world, there is imperfect information about judicial performance.4 In an environment without information asymmetries, reputation would play no role since everyone would be able to observe performance accurately. Under time and informational constraints (which may grow over time as law becomes increasingly complex), a reputation becomes a kind of shortcut to help audiences figure out how to react to judges and their decisions. This implies that every judiciary must consider reputation, because many relevant audiences cannot directly observe certain attributes that they wish to know about.

Reputation requires assessments about performance. These assessments are made by audiences with varying degrees of information. One particularly important audience is the judiciary itself. We refer to the judiciary as the internal audience for judging. All other audiences are lumped together into what we call external audiences, meaning that they are external to the judicial branch. These audiences might be relatively informed about judicial performance, say if they are made up of lawyers or academics, or relatively uninformed, if they are laymen. At the same time, the strategies used by the judiciary have to be based on a set of consistent beliefs (for example, due to sophisticated mechanisms such as Bayesian updates)5 by those who have less accurate information. The main consequence is that the performance by the judiciary at any given moment might be driven by strategic efforts to build reputation to generate future payoffs (that is, gains for the judiciary).

This chapter focuses on the structures that facilitate judicial production of the raw materials of reputation. Here “raw materials” are things like legal decisions, opinions, talks, other writings, procedural rulings, and oral questioning. We do not discuss the processing of these raw materials by audiences, which might take the form of legal analysis, media reporting, and commentary.

Judicial reputation plays two important roles. First, it conveys information to the uninformed general public about the quality of the judiciary (and, more generally, about the legal system) as perceived by the relevant audiences. Second, reputation fosters esteem for the profession and for the individual judge—both self-esteem and esteem in the eyes of others. A judiciary with high esteem is likely to be able to garner more material resources and to be more insulated from other political actors who might expropriate such resources (whether monetary or social).

The reputation of the judiciary, individually or as a whole, determines its status in any given society and its ability to compete effectively for resources within the government. We do not specify a universal reputation function for judges, and we recognize that judges in different systems will seek reputations for different qualities—such as predictability, wisdom, or efficiency—that might not be valued in other systems. Whatever the definition of judicial quality in a particular legal system, reputation emerges as a relevant factor and plays an important role.

We make three claims. First, reputation matters. Virtually every theory of judicial power is dependent, ultimately, on perceptions of judges and their abilities. A judge’s decisions will be respected and complied with only if she has a reputation for high quality, as determined by the relevant audiences. Without compliance, judges cannot accomplish their social functions of resolving disputes, articulating rules, and serving as vehicles for social control.6 Thus reputation is essential from an instrumental perspective.

Our second claim is that reputation can be divided into individual and collective components. Individual reputation reveals information about individual performance, whereas collective reputation reflects information about the quality of the judiciary in general. At the same time, each member of an institution cares about his individual reputation but also about the reputation of the group as a whole. Collective reputation determines the status of the judiciary, but individual reputation influences the relative perception of an individual judge against their fellow judges (as a group). It follows that not all reputation building is necessarily socially beneficial; it is possible that some internal status dynamic might lead judges to overinvest in aspects of their individual reputations to impress each other. Such internal competition might result, for example, in a particularly complex or technical jurisprudence that is unintelligible for the average citizen, deviating from the social optimum.

The bifurcated nature of reputation between individual and group components creates interesting institutional challenges, which we analyze below using the economic concept of team production.7 If judicial performance was purely the result of individual effort and the quality of the judiciary could be easily disaggregated into its individual components, individual reputation should prevail as the most important mechanism to provide information. But, crucially, it is often difficult to monitor or differentiate the separate individual contributions to the production of justice or judicial decisions; in technical terms, the judicial product is “nonseparable.” Because of this, we also need information about the aggregate performance of the judiciary; the whole is more than the sum of individual contributions. Consequently, an important task of institutional design is to incentivize the optimal balance of investments into the different components of reputation to match the needs of any given society.

Our third claim is that different legal systems configure institutions in different ways in order to address the problems of information and reputation. The classical understandings of the common law and civil law judiciaries can be seen as sets of linked institutions that are mutually reinforcing in addressing the problems of information and reputation. We describe these institutions from the perspective of information and reputation and explain how they interrelate. Judiciaries that emphasize collective reputation utilize institutions to limit publicly available information about the performance of the individual judge. Those that emphasize individual reputation, on the other hand, facilitate the disclosure of such information. In both cases, the disclosure or nondisclosure of private information about individual performance reinforces the kind of reputation that prevails in the judicial system.

Our discussion of institutional arrangements is fundamentally positive in that we are not trying to identify a single universal optimum for all countries. We explain how institutions favor the production of individual or collective information but also assume that the optimal balance may vary across jurisdictions, depending on local preferences, historical events that determine the allocation of human capital, and political economy. Although, from an economic perspective, we might expect that information about individual performance would always be valuable to the relevant audiences (other judges, lawyers, economic and political agents, and the general public), it could well be that the political context makes disclosure of information about individual performance harmful. For example, a judiciary that is concerned about threats to its independence may prefer to mask individual judicial contributions out of concern that politicians may seek to remove judges who decide cases against them.

Judges in different societies play different social functions. Judges everywhere play an important role in dispute resolution.8 Some courts are primarily engaged in social control, serving as part of the state’s apparatus to govern citizens and limit abuse by low-level government officials. Other courts are primarily engaged in lawmaking, articulating norms for the society. As we shall explain, we believe that collective reputation dominates when the legal system emphasizes social control: hierarchical systems reduce agency costs by allowing superior levels to supervise lower levels. On the other hand, when judges are delegated with the task of lawmaking, individual reputation is necessary to ensure accountability. We tend to observe great emphasis on ex ante screening of judges in such environments. In our view, these observations help explain why we observe a dominant structure within any particular legal system but also help explain pockets of exception found in many systems.

Our effort is consistent with a recent body of work in comparative law that looks at the actual institutional structures of different legal systems.9 This approach contrasts with the deductive approach that starts with legal origins and assumes that ancient institutional distinctions are enduring and consequential.10 We believe that institutions matter but also emphasize that institutional structures can change over time, and suggest that minor institutional reforms can have major and unintended consequences on the production of reputation. This perspective, we argue, is more helpful for understanding judicial behavior than the simple categorization of legal origins.

Our chapter is organized as follows: The first section lays out why reputation matters. The second and third sections describe our theory, treating judicial reputation from the perspective of the economics of team production. The fourth section identifies how particular institutions affect reputation and suggests that institutional configurations fall into two clusters, roughly but not exclusively corresponding to the common law and civil law judicial systems. We find that the former system favors the production of individual reputation and the latter collective reputation. We illustrate the contrast with a discussion of the United States and Japan in the final section.

Why Reputation Matters

To begin, we should define reputation with some precision. As mentioned above, we think of the reputation of any particular agent as the stock of private assessments of past behavior. This involves information on past performance (if directly observable), as well as signals given by the agent herself (when there is an information asymmetry). Assessment of reputation may be based on public information or private information, depending on the relevant audience. It is possible, but not at all necessary, to imagine that reputation includes an esteem component, so that reputation is granted by a particular audience on the basis of some interdependent production function involving both the judicial “producer” and the outside “consumer.” Further, some definitions rely on the idea that reputation is used to predict future performance, but in our context, this is not required: we can speak of the reputation of a long-dead judge.11

Reputation has two components. Individual reputation conveys information about the individual performance of a given judge, whereas collective reputation reveals information about the performance of the judiciary as a whole. But judges produce the law collectively, so it is difficult to determine whether any individual decision results from qualities of an individual judge or the judiciary as a whole. Due to the nonseparable nature of judicial production, collective reputation is not simply the aggregation of individual reputations. If it were, then collective reputation would be trivial. In other words, collective information may differ from the sum of assessments about individual performance. Notice that our distinction is not merely explained by cognitive limitations, such as the idea that the general public cannot recall the individual names of judges and therefore uses the perception of an average performance as a proxy. Our distinction is driven by our understanding of judicial production as teamwork.

Judges, like most everyone, care about their reputation to the extent that reputation is an important social and economic asset.12 No doubt judges care somewhat about monetary rewards, and therefore reputation is important to the extent that those monetary payoffs vary with reputation.13 If information about individual performance determines salaries, then judges will care about individual reputation. If information about the collective performance and quality of the judiciary determines salaries, then judges may change their behavior accordingly to invest in collective reputation.

Judges also care about nonmonetary rewards, and in this respect, reputation is an important professional asset. Reputation is a credible signal of high quality, which allows judges to fulfill professional duties and achieve career goals.14 The ability of judges to influence society is shaped by the individual and collective information conveyed to relevant audiences.

The significance of reputation extends far beyond the welfare of an individual judge. The reputation of the judiciary as a whole is dependent on the reputation of its component judges. The reputation of the judiciary has a crucial impact on its ability to accomplish its goals. Judicial decisions, after all, are not self-enforcing but instead require real-world institutions and individuals to take action to ensure compliance.

There are a variety of theories that attempt to explain why people obey the pronouncements of courts. One traditional ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Introduction
• 1 A Theory of Judicial Reputation and Audiences
• 2 Pockets of Exception
• 3 Wearing Two Hats: Judges and Nonjudicial Functions
• 4 The Selection and Monitoring of Judges: The Spread of Judicial Councils
• 5 When Courts Collide: Intracourt Relations and the Problem of Audiences
• 6 The Rule of Lawyers: Globalization, International Law, and Judicial Reputation
• 7 Conclusion: The Shift toward the External Audience and Lessons for Reform
• Appendix A: List of Courts Included in the Dataset
• Appendix B: Data on Judicial Councils
• Notes
• Index