Judges as Altruistic Hierarchs: 2001 George C. Wythe Lecture
Stout, Lynn A., William and Mary Law Review
Judges are hierarchs. By this, I mean that judges in our society enjoy positions of unusual authority associated with four important characteristics. First, judges possess remarkable power to decide the fates and fortunes of others. Second, they possess this power not because they have purchased it in the market or acquired it by force, but because they have been selected to receive it, sometimes by the very persons whose fates and fortunes they will decide. (1) Third, judges are expected to use their power not to pursue their own interests--which would be viewed as an abuse of power--but to serve the social goal of the fair and impartial application of law. (2) (One can of course argue over where judges should look to find the law--indeed, this is a central problem in jurisprudence--but whatever "the law" is, it is commonly understood that it is normatively desirable that judges follow it). Fourth, judges are expected to serve this social goal faithfully, even though they have remarkably little financial incentive to do so.
The federal judiciary offers a striking example of this pattern. At both the trial and the appellate levels, federal judges enjoy enormous discretion to determine the outcomes of the cases before them. (3) They enjoy this authority because they have been appointed by the President with the advice and consent of the Senate. (4) They are expected to use their judicial powers to decide disputes fairly and according to law, even though they receive no significant external rewards when they do so, and suffer no significant external punishments when they do not.
It is this last aspect of judges' hierarchical status that I find especially intriguing and troubling, and it is the focus of this discussion. Consider the monetary incentives faced by the typical member of the federal judiciary. A federal judge has a job for life, and she cannot be removed from it unless she indulges in the most egregious forms of conduct. (5) As a matter of law, her salary is fixed by Act of Congress; it can neither be increased to reward superlative effort, nor cut to punish inferior performance. (6) As a result, federal judges operate in a world where monetary carrots and sticks are notably lacking. Indeed, if one looks only at financial incentives, it is difficult to explain why most federal judges do not simply decide their cases by flipping a coin, and then take the rest of the day off and go fishing. (7)
Contemporary scholars, faced with this lacuna, have had to employ a great deal of imagination to explain why judges might in fact perceive it as in their self-interest to do a good job of judging. (8) For example, in one early and pioneering article on the subject, Robert Cooter argued that judges are motivated by the desire to enhance their prestige among lawyers and litigants. (9) Other commentators have hypothesized that judges might expend effort because they hope to be appointed to a higher court, fear being reversed by a higher court, are concerned about their reputations among their fellow judges, or have a general desire to exercise influence (10) and "have an impact for the sake of having an impact." (11) Judge (formerly Professor) Richard Posner has argued that, in addition to these concerns, judges may also get utility from playing the judicial "game" according to its rules. Posner posits that judges may decline to decide cases on personal whim for the "same reason that many people do not cheat at games even when they are sure they can get away with cheating. The pleasure of judging is bound up with compliance with certain self-limiting rules that define the `game' of judging." (12)
In this discussion, I suggest an alternative approach. In offering this alternative, I do not intend to suggest that the quest for prestige, the fear of reversal, the hope of higher appointment, or concern for one's reputation are unimportant judicial incentives. …