Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges. In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice. In particular, I want to focus on “rational choice” and district judges.
Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences. While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.
As the full title of their book specifies, the authors assert that federal district judges are rational actors. Employing an economic model, the authors’ premise is that federal district judges avoid effort that is wasteful or unproductive (effort aversion) and federal district judges avoid effort that results in reversal (reversal aversion). Since most cases in the federal district courts are “easy”–meaning that they can be resolved by application of rules and precedents–federal district judges resort to conventional legal reasoning even when that reasoning produces results inconsistent with the judge’s personal ideological preferences. Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful. That is, the federal district judge will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort. The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.*
Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views. This group of judges act more like carpenters than politicians. This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.
*One can accept the data discussed by the authors and the statistical analysis conducted by them without accepting or fully accepting their labor model as an explanation.