Judges as altruistic hierarchs: 2001 George C. Wythe Lecture.

• Author: Stout, Lynn A.

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. Rather, I suggest that they are incomplete. I believe that if we wish to truly understand hierarchy in general and the judiciary in particular, we must formally acknowledge a fundamental truth about judges that is implicit in many popular discussions of the judiciary, (13) but notably absent from much contemporary scholarly discourse on judicial motivation and behavior. (14) This fundamental truth is that the modern judiciary rests on the expectation that judges will behave in an altruistic fashion.

ALTRUISM AND RATIONAL CHOICE

To some, the word "altruistic" may conjure up images of Mother Theresa and similar ascetics who devote their lives to helping others. I do not intend to suggest that we expect judges to endure similar levels of self-sacrifice. Nor do I suggest that judicial altruism need be directed toward any particular person or persons. I am saying something far more modest. I am saying that we expect judges to try to do the right thing--to try to apply the rules of law in a fair, impartial, and consistent manner--even though they are neither rewarded when they do, nor punished when they do not. (15)

To put the point (somewhat awkwardly) in economic terms, I am arguing that we expect judges to display what I shall call "other-regarding revealed preferences." I employ the economic concept of a revealed preference here to emphasize that I am discussing how judges behave rather than how they feel. Judges' apparently altruistic behavior may be driven by guilt, ego, mindless adherence to role, or the fear that a goddess in a toga will strike the erring judge with lightning. Whatever the motivational source of other-regarding behavior, the bottom line is that judges often act as if they care not just about costs and benefits to themselves but also about costs and benefits to others, including perhaps such abstract "others" as the rule of law, or ideals of proper judicial conduct. (16)

This is a far more diluted version of altruism than the sort associated with Mother Theresa. Indeed, it might be alternatively described as moral principle, commitment to public service, legal craftsmanship, or even noblesse oblige. Yet even so diluted, the notion that altruism plays a role in shaping judicial behavior is controversial. This is because the idea of altruism flies in the face of rational choice analysis, which generally presumes that the best way to model and predict human behavior is to assume that people are rational actors concerned only with improving their own welfare. (17)

Rational choice theory has become a staple of modern legal scholarship, and this is no less true for scholars who study the judiciary than for those who study contract law or products liability. As a result, the homo economicus model of behavior provides the foundation on which much of the contemporary scholarly literature on judicial behavior is built. (18) This influence is especially apparent in the writings of those who work in the area known as "public choice," a field which applies the tools of economics to the behavior of political actors, and presumes that legislators, judges, and other public servants are motivated primarily by self-interest. (19)

I believe that rational choice theory has much to offer in our quest to explain the actions of government institutions. I also believe, however, that rational choice can be fundamentally misleading when used to analyze a hierarchical role like that of the modern judge. Standard rational choice analysis leaves out something important, something that lies at the core of our notions of proper judging. The missing ingredient is altruism. I suspect that if we really expected judges to behave purely selfishly, they would not play nearly so great a role in our economic and political system, nor would we grant individual judges so much power. A corollary is that if we want to develop a solid understanding of judicial motivation, we must formally recognize the phenomenon of other-regarding behavior and incorporate it into the analysis of judicial behavior.

To do this we need to look outside economics and rational choice to the broader social sciences literature. I have reviewed some of that literature, and I have good news to report: social scientists outside the field of economics have developed a rather impressive formal understanding of when, why, and to what extent people are likely to behave in an other-regarding fashion. (20) Altruism, it turns out, is neither a rare nor a quirky behavior. Indeed, it is both common and predictable.

As an introduction to this literature, I would like to focus on a representative subset of the evidence on altruistic behavior that I believe is both especially compelling and especially useful. This is the empirical evidence from studies of human behavior in a type of experimental game known as a "social dilemma."

EXPERIMENTAL EVIDENCE OF ALTRUISM IN SOCIAL DILEMMAS

Casual empiricism suggests that everyday life is full of incidents of altruism. People keep promises, leave tips, and decline to take advantage of others' obvious mistakes even in nakedly commercial transactions. Yet to the dedicated skeptic, such anecdotal evidence may be unconvincing. This may be because contemporary societies tend to be structured so that altruistic behavior also is at least consistent with--if not necessarily fully explained by--observable external incentives. (21) As an example of this pattern, consider the observation that most people do not mug other people. Altruism offers one possible explanation for this phenomenon: perhaps most people prefer not to hurt and frighten others. It is also possible, however, that most people do not mug others solely out of fear that they will be arrested and punished, or fear that their victims might resist and injure them. (22)

In social dilemma experiments, social scientists can exclude the possibility of such external motivations for altruistic behavior by creating situations that clearly pit self-interest against the interests of others. (23) This is done by asking two or...