What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)

Abstract

This article presents a positive economic theory of the behavior of appellate judges and Justices. The essay argues that the effort to insulate judges from significant economic incentives, through devices such as life tenure and stringent conflict of interest rules, has not rendered judicial behavior immune to economic analysis. Drawing on analogies to the managers of non-profit enterprises, to those who vote in political elections, and to theatrical spectators, the essay models the judicial utility function in terms that allows judges to be seen as ordinary people responding rationally to ordinary incentives. This model provides a theoretical alternative to the common view of judges as Prometheans or saints, and it suggests new ways of looking at such practical issues as the design of the judicial compensation system.