Judicial Laterals

Jonathan R. Nash (Emory University)

Abstract : Just like lawyers in practice at one law firm sometimes “lateral” to another law firm, so too do judges in one judicial system (either the federal judiciary or a state judicial system) “lateral” to another judicial system (either a state judiciary or the federal judiciary). This paper examines the practice of “judicial lateraling.” It develops, and seeks to validate, five hypotheses. First, all else equal, judges will be more likely to move from a state judicial position to a position in the federal judiciary than vice versa. Second, judges who move from the federal judiciary to a state judiciary will be more likely to move to a position in the judicial hierarchy higher than the one they left (e.g., from a position as a federal trial judge to a position as a state appellate judge). Third, a judge who will be more likely to gain a “step up” in the judicial hierarchy when moving from the federal judiciary to a state judiciary than the other way. Fourth, the greater the professionalism of the state judiciary, the less likely it will be for a state judge to accept a step down in the judicial hierarchy when moving to the federal judicial system. Fifth, the greater the professionalism of the state judiciary, the less likely it will be for a state judge to lateral to the federal judiciary.

Averaging Judges

Jacob Nussim (Bar-Ilan University)

Abstract : This essay advances a new reform of judicial decision-making. It challenges the seemingly unquestionable use of voting rules by panels of judges or jurors. Instead, it proposes mathematical aggregation rules for the prevalent probability-based legal decisions, such as burden of proof decisions, and demonstrate their superiority on normative, empirical, analytical, and intuitive grounds. Judges and jurors make many dichotomous legal decisions, dictated by legal thresholds. Several legal thresholds are quantitative. Burden of proof standards–i.e., beyond reasonable doubt, preponderance of the evidence standards–set probability thresholds that dictate a binary legal decision. This essay reconsiders the “proper” way to aggregate legal opinions in judicial panels of judges or jurors in probabilistic legal threshold cases. It suggests a theory of opinion aggregation as an information pooling problem. It explains why we should doubt the efficacy of existing voting-based rules, and then proposes and justifies a new set of mathematical aggregation rules for the judiciary. The essay offers both a theoretical framework and empirical results that assist in reevaluating judicial aggregation rules. Building on this framework, it demonstrates the superiority of mathematical aggregation rules over existing voting rules in reaching correct legal decisions by judicial panels. The basic insight is that voting-based aggregation rules miss out on valuable (quantitative) information, whereas mathematical aggregation rules can fully utilize the information produced by panel members, and accordingly produce more accurate legal decisions. More subtly, the essay points to a neglected trade-off between information aggregation and strategic behavior in panels. Mathematical rules are superior in aggregating information, and voting-based rules can be justified only by a strategic and insincere(!) account of judges’ behavior.

Double-sided Moral Hazard in Judicial Institutions

Ludivine Roussey (Université Paris Descartes)
Raphael Soubeyran (INRA)

Abstract : We develop a double-sided moral hazard model to tackle organizational issues in judicial institutions. Modelling production of justice with a double-sided moral hazard model corresponds well with the idea that court services are achieved by combining two inputs: jurisdictional tasks and administrative tasks. Jurisdictional tasks are typically performed by magistrates. Administrative tasks are expected to be conducted by the government through the provision of judicial assistants or information technology. In reality, magistrates also perform administrative tasks. Our model contributes to existing literature on double-sided moral hazard by studying a case where the agent (here a representative magistrate) may substitute his own effort for that of the principal (the government) to undertake some of the tasks a priori allocated to the principal (administrative tasks). Our main finding is that two sources of inefficiency in the production of justice are possible according to the relative unit cost of administrative tasks for the two co-providers. The first source of inefficiency is due to sharing the incentives to make each co-provider exert an effort, and the second corresponds to a misallocation of administrative tasks when the representative magistrate takes in charge the whole production of judicial services.