Academic journal article Judicature

The Behavioral Economics Alternative the Legal-Model Fiction in Epstein, Landes, and Posner's the Behavior of Federal Judges:

Academic journal article Judicature

The Behavioral Economics Alternative the Legal-Model Fiction in Epstein, Landes, and Posner's the Behavior of Federal Judges:

Article excerpt

Epstein, Landes, and Posner's exceptional book compares a rational choice model to a dubious non-political legal model, as advocated by Judge Harry Edwards. The behavioral economic alternative to a full-blown rational choice model would have made for a better comparison.

Lee Epstein, William Landes, and Richard Posner have written a monumental book on judicial behavior. Briefly, the book compares the rational choice and legal models of judicial decision making, reviews the relevant literatures on each, and then conducts some statistical analyses that support the rational choice model.

Many scholars are prey to overgeneralizing about themselves to the rest of the world. For example, Alford and Hibbing note, "When Morris Fiorina writes that he is 'rational choice down to (his) DNA' he could literally be correct.''1 Fiorina is thus attracted to a theory that in his own belief mirrors his personal psychology. Not these authors. One of the key components of the utility function that they posit for judges is the demand for leisure. Lee Epstein- with 17 books, 88 published articles, and 20 grants-is one of the least leisurely political scientists in the nation. William Landes-Emeritus Professor of Law and Economics at the University of Chicago Law School and founding partner of the highpowered economic consulting firm Lexecon-has edited The Journal of Law and Economics (1975-1991) as well as The Journal of Legal Studies (1991-2000) and has just published his fourth book to go with his 61 published articles. As for Richard Posner, with the passing of James Brown in 2006, he may well be the hardest-working man in America. He is, of course, a judge on the U.S. Court of Appeals for the Seventh Circuit. For most people that would be sufficient employment, but Posner is also Senior Lecturer at the University of Chicago Law School. He has written 50 books, but we accessed his vitae in June 2013, so he probably has a few more by now.2 His journal articles are easily in triple digits. The leisureseeking aspect of the authors' rational choice model may well apply to federal judges, but it does not apply to the authors themselves.

The Legal Model: A Curious Choice

Regardless, Epstein, Landes, and Posner offer their rational choice, labor-market-based theory of the behavior of federal judges as a "more realistic"3 theory of judicial behavior than competing theories favored by legal academics and political scientists. Of these competing theories, they sharply contrast their labor market model with traditional legalist theory (the "legal model"), which purports that judicial decisions are based on facts and legal principles without regard to other principles such as political ideology. Though the authors' model does contrast quite clearly with the legal model, the legal model is a curious choice, as the authors have thoroughly discredited it in previous writings. In a 1999 issue of the Law and Courts newsletter, Epstein writes, "At a time when we spend countless hours on our listserv engaging in trivial pursuits-such as, defending a model (the "legal" model) that so many of our colleagues in the legal world long abandoned-other fields have moved on to genuinely interesting questions...."4

Posner has been no less critical of the legal model. In his past work, Posner characterized the legalistic model as an unattainable and impossible model for how judges in America make decisions. He called it the "falsest of false dawns" that any sort of reform or renewed commitment to legalism could change the "legislative character of much American judging [that lies] so deep in our political and legal systems and our culture.''5 For the legalistic model to hold, Posner asserts that judges must act like the Oracle of Delphi, but instead of passively transmitting the prophecies of Apollo, a judge transmits the meaning of the law. The problem is that judges cannot act like the fabled Oracle but, instead, are ordinary human beings with all their frailties, limitations, and vices. …

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