Document Type

Article

Publication Title

Brigham Young University Law Review

Abstract

How do judges behave in deciding cases? The question seems to be peculiarly immune to the ordinary techniques of social science analysis. While public choice theory in particular has achieved important breakthroughs in understanding legislative behavior, it has not achieved similar successes in dealing with judicial behavior. Yet, in an odd sense, its inability to provide us with strong predictions as to how judges behave should be regarded as a backhand confirmation of the theory, and not as its refutation. Given the set of institutional constraints under which judges routinely labor, the basic assumption of public choice theory-that self interest rules behavior in public as well as private transactions-should yield only weak and instructive generalizations about judicial behavior. The fundamental soundness of our constitutional structure has channeled self-interest away from its most destructive paths, and has robbed it of its greatest possibilities of doing political and constitutional mischief. To develop these themes, this paper will proceed in several steps. Section II takes a short detour into the standard modes of self-interest analysis that social scientists (and to some extent lawyers) bring to these issues. It then explains why public choice analysis, as applied to judicial behavior, necessarily yields a very meager harvest. Section III deals with "judicial temptation" and its institutional constraints. These constraints are so effective that, even when judges do act to maximize their own individual self-interest, by default they are influenced by the matters of background and temperament that receive so much weight in the ordinary political science accounts of judicial behavior. Finally, section IV turns to the related issue of judicial "virtue": does the independence of the judiciary, once secured, advance or impede long term social welfare? Here I conclude that it is a mistake to assume, as has been argued by Professor Landes and Judge Posner, that judges function as the legal glue that holds in place the deals generated by interest-group politics. By the same token, however, judicial independence offers no guarantee that judicial decisions will serve the public interest, even if we could all agree as to how it should be defined.

First Page

827

Volume

1990

Publication Date

1990

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