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文/Lewis A. Kornhauser

 JUDICIAL ORGANIZATION AND ADMINISTRATION

Lewis A. Kornhauser

Professor of Law, New York University School of Law

© Copyright 1999 Lewis A. Kornhauser

 

Abstract

This chapter surveys the economic literature on the functions and structure of

courts. Issues concerning appellate courts and collegiality are addressed in a

companion chapter.

JEL classification: K4

Keywords: Judicial Administration, Court Organization, Judges, Adjudication

 

1. Introduction

 

Economic analyses of substantive legal rules generally suppress the

adjudication of factual and legal disputes that a legal rule might engender. The

nature of adjudication, however, will influence greatly both the content of the

substantive law and the costs of dispute resolution. An understanding of the

structure of adjudication is thus central to an understanding of the effects of

legal rules on behavior and on the identification of socially desirable legal

rules. In addition, adjudication is a complex task implemented through

institutions that vary across time and jurisdiction. The structure of adjudication

and questions of judicial organization and administration thus present a rich

field of study in their own right.

 

These two approaches to the study of judicial organization raise different,

though equally interesting, questions. As yet, no unitary theory has developed

to explain the structure of adjudication. The initial economic analyses of these

institutions have raised several important questions: (1) What are the functions

of adjudication? (2) Why is adjudication public rather than private? (3) Should

there be only one system of courts or should there be many? (4) What is the

relation among courts, legislature and executive? (5) How do we explain the

organizational features of courts such as their jurisdiction and their hierarchical

relation?

 

The questions presented by judicial organization and administration are

contiguous with those presented by appeal and supreme courts. I adopt a

somewhat arbitrary division of topics and relegate discussions of the reasons for

appeal, explanations of hierarchy and collegiality to Chapter 7200 Appeal and

Supreme Courts.

 

2. The Functions of Courts

 

2.1 What Do Courts Do?

Adjudication resolves disputes. Dispute resolution itself consists of at least four

different tasks. First, courts must determine the facts of the dispute. Second,

they apply the law to those facts. Third, the court may, in some instances,

enforce its judgment against one of the parties. Finally, in some instances, the

court may have to compel one or more of the parties to submit to the

jurisdiction of the court.

 

In some legal systems, the judicial function is limited to these four tasks; in

others, courts also make law. In civil law theory, for example, courts simply

apply the law announced by legislatures to resolve disputes. Legal theorists in

common law countries, by contrast, resolve disputes through the application of

law but also promulgate new legal rules; courts thus play a lawmaking function

as well.

 

This difference between civil and common law perceptions of adjudication,

as well as various structural differences between the two systems, presents a

challenge to economic analysts which has yet to be answered.

 

2.2 Public vs. Private Adjudication

Adjudication is commonly considered a quintessential function of government.

In recent years, however, there has been a substantial privatization of at least

some of these functions through a growing use of arbitration and other ‘private

judges’. This phenomenon has prompted scholars to study the extent to which

government must supply judicial functions. Landes and Posner (1979) provide

one of the earliest inquiries into the choice between private and public

provision of adjudicatory services. Working within a common law framework,

they identify the judicial functions as both dispute resolution and rule

generation. They argue that only the dispute resolution function is suitable for

(partial) privatization. Some public provision of dispute resolution might be

necessary because (1) enforcement of judgments might require public authority

and (2) in some instances, public authority may be necessary to compel one or

more parties to submit the dispute to adjudication in the first place. A private

market in adjudicatory services, however, would meet all other requirements

of a dispute resolution system. They argue that a competitive market would

produce competent and impartial judges because both qualities would be

necessary to induce all parties to a dispute to consent to adjudication of their

dispute by a given judge. Cooter (1983) offers a similar argument.

 

Landes and Posner, however, argue that private provision of rules will not,

in general, be desirable. Rule generation is a public good and a private judge

who announces a rule will not capture all the benefits that the announcement

of a rule creates. Therefore, in a system of private adjudication, rules will be

undersupplied. In addition, competing judges may generate competing sets of

rules. They do not, however, explain why rules cannot be adequately supplied

by legislatures.

 

Shavell (1995) considers the choice of private dispute resolution in the

context of an established public system of courts. He addresses two questions:

why would parties resort to private dispute resolution? and when is it socially

desirable? He distinguishes ex ante invocation of private dispute resolution, in

which the parties agree prior to the emergence of a dispute to resort to private

resolution of their dispute, from ex post invocation of it, in which the resort to

these private methods occurs after the dispute arises. He argues that ex ante

invocation is socially desirable for three reasons: (1) it may lower the costs and

risks of dispute resolution; (2) it may create better incentives to perform

because of the greater accuracy of private resolution; and (3) it may reduce the

number of litigated disputes. He argues that ex post invocation of private

dispute resolution is not desirable.

 

3. The General Organization of Courts

 

3.1 Judicial Motivation

Economic models of judicial behavior and of court organization require an

assumption concerning the motivations of judges. This requirement presents

the central challenge to the economic analysis of courts. Several approaches

have been adopted, most of which are surveyed here. A supplementary

discussion that emphasizes a distinction between ‘team’ and ‘political’ models

of judges appears in Chapter 7200 on Appeal and Supreme Courts.

 

The literature has focused primarily on adjudication in common law

jurisdictions. This focus has implied that lawmaking is the judicial function

that has received the most motivational attention. In this context, the literature

has advanced three different types of answers to the question of judicial

motivation. First, one can assume that judges meet their obligations as

articulated in some jurisprudential theory of adjudication. Put differently,

judges ‘follow the law’. Team models, discussed in Section 2 of Chapter 7200

Appeals and Supreme Courts attempt to ground this adherence to norms in a

more economic framework. Second, one can assume that judges seek to

implement their own policy preferences subject to constraints such as review

by other judges or by legislatures. This political model is discussed at greater

length in Section 3 of Chapter 7200. Third, one may assume that, as in political

models, judges act self-interestedly but define self-interest differently. The

literature surveyed here has largely attempted to infer judicial motivation from

the structure of incentives within which the judge works.

 

Aranson (1990) surveys the political science literature that applies the

spatial theory of voting to courts and compares it to law and economics

approaches to judicial motivation. He suggests three competing views of

judicial motivation. The first, that it is rule governed, parallels the first strand

mentioned above and discussed at greater length in Section 2 of Chapter 7200.

The second, that judicial motivation is rent redistributing, and the third, that

it is wealth maximizing, describe systemic tendencies rather than the

motivation of particular judges. One might understand ‘rent redistribution’

consistently with the political model discussed in Section 3 of Chapter 7200.

Wealth maximization, by contrast, assumes that Posner’s claim that the

common law maximizes wealth can be explained in terms of judicial success

in pursuit of their common aim.

 

Posner (1973) sketched an approach to the problem of identification of the

preferences of judges. He assumed that judges were self-interested and then

briefly examined different incentive structures from which he inferred the

underlying preferences of the judges. In particular he compared the structure

in many states in which judges lack life tenure and aspire to higher political

office to the structure of the federal courts in the United States in which the

judges have life tenure. These themes were developed in the subsequent

literature.

 

Landes and Posner (1980) argue that utility maximizing judges will

primarily seek to maximize their power because their performance is too

weakly linked to income and promotion for those concerns to have much effect

on judicial behavior. They then adopt the number of times a judge is cited in

other cases as a measure of his power. They then argue that judges with higher

salaries and more secure tenure will have greater power (and hence be cited

more often) because higher salaries both attract more competent judges and

reduce the judge’s incentives to distort his decisions and because longer tenure

reduces turnover and the influence of politics. They then provide an ingenious

test of their hypotheses. They create two samples of common law appellate

opinions rendered in 1950. First they looked at all 246 tort, contract and

property cases decided by the federal appellate courts under their diversity

jurisdiction. Second they drew a random sample of 241 tort, property or

contract cases decided by state supreme courts in 1950. The number of cases

drawn from a specific state matched the proportion of federal cases decided

under the law of that state. They then compared the citation rates of state and

federal decisions in the two systems. They found only weak support for their

hypothesis concerning higher salary and more secure tenure. Federal decisions

were more likely to be cited in the state supreme courts of ‘other’ states (that

is, states other than the one of which the federal court applied the law) than the

decisions of state courts.

 

Cooter (1983) adopted a procedure similar to that of Landes and Posner

(1979). He developed a theory of behavior of private judges and used that as a

benchmark from which to infer the preferences of public judges. He argued that

both public and private judges would care about their reputations among other

judges and the bar.

 

Higgins and Rubin (1980) addressed the concern for promotion somewhat

more directly. They argued that judges have preferences over policy ‘discretion’

and wealth; these preferences are conditional on their age. They argue that a

judge’s ability to satisfy her preferences are constrained in two ways. First, the

reversal rate depends on the judge’s policy preferences and the policy

preferences of the higher court. Second, wealth depends on the reversal rate

(because that affects each judge’s prospect of promotion) and age. They then

derive a test for the relative effects of discretion and wealth.

 

They study two samples. The first sample consists of those active district

court judges in the eighth federal circuit in 1974 who permitted the release of

data on the total number of cases they decided in 1973 and 1974. The second

sample consisted of all active district court judges in the fifth federal circuit in

1966. They found that neither age nor seniority explained the reversal rates of

the eighth circuit judges. They did find however that the estimated parameter

on reversal rate had the predicted sign and was significant at the 10 percent

level in a logit estimation of the probability of being promoted.

 

Greenberg and Haley (1986) argue, contrary to the conventional wisdom in

general and to Posner (1985) in particular, that low judicial salaries are socially

desirable because they signal a greater willingness to accept the non-pecuniary

benefits of the judiciary; moreover, they argue that individuals who derive

greater non-pecuniary benefits from judging make better judges.

 

Elder (1987) identifies two distinct mechanisms for monitoring judges:

political and administrative mechanisms. These mechanisms create different

incentives so that one should observe different behaviors in systems with

different monitoring mechanisms. Without specifying the judicial objective

function precisely, he nevertheless argues that judges deciding criminal cases

will produce more trial verdicts under political monitoring than they would

under administrative monitoring. He then tests this claim on 1977 data drawn

from state criminal courts in 247 districts in seven states. His parameter

estimates are consistent with his hypothesis.

 

Cohen (1992) followed up Elder’s approach. He argued that Elder implicitly

assumed that each judge sought to maximize his preferences defined in terms

of minimizing his workload and his reversal rate. He argues that these

preferences also imply that, when the penalty range increases, a judge will

increase the penalty of those defendants who request a trial more than they

increase the penalty of those who plead guilty. He also argues that judges will

be concerned about promotion and that this too will influence the pattern of

sentencing. He then considers a sample that consists of all federal antitrust

indictments from 1955 through 1980. In 1974, Congress increased the

maximum penalties for antitrust violations from $50,000 to $100,000. He finds

that promotion concerns are explanatory with respect to fines but not with

respect to incarceration.

 

Cohen (1991) exploited the data generated by a ‘natural experiment’

presented by the adoption of new sentencing guidelines by the United States

federal courts. He examined 196 decisions by federal district courts that

considered the constitutionality of the guidelines. He estimated a probit model

of the probability of upholding the guidelines as a function of judicial ideology,

caseload, promotion potential and the number of prior decisions for

constitutionality. Promotion potential was measured by an index that reflected

the (per district court judge) number of open seats on the appellate circuit. He

found that the parameters on workload and promotion potential had the

predicted sign and were highly significant.

 

Katz (1988) adopts a behavioral approach. He assumes that judges decide

cases on the basis of the arguments presented to it. Each party offers arguments

in its favor and the court decides in favor of the plaintiff if the plaintiff’s

arguments, in light of the ‘underlying’ (or, perhaps, ex ante) merits of the case,

outweigh the defendant’s arguments and some random error. He then shows

that, when cases are more evenly balanced ex ante, expenditures of each party

on litigation rise; and, if judicial decision is more random or variable, each

party’s expenditures fall.

 

3.2 Independence of the Judiciary

Economic analysts have devoted much attention to explanations for, and

implications of, ‘independent’ judiciaries. An independent judiciary is one that

is free from external influence, primarily, political influence. This conception

of independence is somewhat at odds with the ascription of a political

motivation to judges themselves because independence is generally seen as

guaranteeing a more ‘objective’ resolution of disputes. Though the literature

has not attended much to this specific problem, there are suggestions that a

more general model of constitutional structure might justify an independent

branch of politically motivated judges.

 

Most industrialized countries assert the independence of their judiciaries but

the structures that guarantee independence differ greatly. In the federal system

in the United States, for example, judges have life tenure and their (nominal)

salaries cannot be decreased during their lifetime. In many states of the United

States, however, judges serve for a term of years; moreover, in many states, they

may be elected in either partisan or non-partisan elections. In both the state and

federal systems, as in common law jurisdictions generally, judges are, however,

drawn from the general bar. In many civil law countries by contrast, law

graduates choose to enter practice or the judiciary at the outset of their career;

a judicial bureaucracy then creates incentives for that judge. The insulation of

that bureaucracy from ‘normal’ politics then determines the extent of judicial

independence. This institutional variation across jurisdictions permits a

comparative study of judicial independence. As a consequence, studies of

independence, unlike studies in other areas of judicial organization, have been

primarily comparative in nature.

 

Landes and Posner (1975) offered the earliest discussion of independence.

Their argument rests on the claim that an independent judiciary will, in

statutory interpretation, enforce the original legislative understanding.

Individual legislatures accede to this practice because they want to increase the

time a statute prevails. Landes and Posner then claim that the degree of

independence should increase with the size of the jurisdiction because larger

jurisdictions provide broader scope for rent-seeking. They then attempt to test

their theory on data concerning 97 statutes declared unconstitutional by the

United States Supreme Court between 1789 and 1972.

 

Ramseyer (1994) extends the analysis of Landes and Posner (1975) by

drawing on a comparison of Japan and the United States. Ramseyer defines

judicial independence as the extent to which politicians do not manipulate

careers of sitting judges. He asks why some politicians provide an independent

judiciary and others do not. He claims that a political structure will provide for

an independent judiciary if (i) politicians believe that elections will continue

indefinitely and (ii) politicians believe that their prospects of continued victory

are low. He then does three case studies: the United States which satisfies both

antecedent conditions and has an independent judiciary; contemporary Japan

which satisfies the first condition but not the second and does not have an

independent judiciary; and imperial Japan which satisfied condition (ii) but not

condition (i) and did not have an independent judiciary.

 

Cooter and Ginsburg (1996) also deploy comparative data to study the

question of judicial independence. They work with a different conception of

independence than Ramseyer. Ramseyer’s definition referred to the structure

of appointment, pay, promotion and tenure in the judiciary. Cooter and

Ginsburg have a more substantive view of independence; they look to the

courts’ ability to make law that diverges from the views of the legislature. They

argue that the degree of judicial independence will depend on both political and

constitutional features of a society. In particular they argue that societies in

which a cohesive party dominates politics will be less likely to have judicial

independence. On the other hand, the more ‘legislative vetoes’ that the

constitution builds into its political process the more independence the courts

have. They then asked experts in comparative law to rank the daringness of the

judiciary of various countries. They then regressed daringness on the number

of vetoes and the duration of the governing coalition. Despite the small sample

size, the parameters on both independent variables had the predicted sign and

were statistically significant; moreover they explained a substantial part of the

variance.

 

3.3 Jurisdiction

Case and controversy requirement Courts generally resolve disputes but the

dispute must generally be, in some way, ‘live’ and ‘real’. In the United States,

this requirement of the existence of a real dispute is embodied in the ‘case or

controversy’ requirement of Article III of the Constitution. The requirement,

however, is not a peculiarity of United States federal courts. With the exception

of some constitutional courts, such as those of France and Germany, that have

jurisdiction to issue opinions on the constitutionality of legislation prior to its

enactment, most judicial systems require some similar trigger. Why should this

be so? And who should be allowed to press a claim concerning a ‘real’ dispute?

Jensen, Meckling and Holderness (1986) address this latter question of who

should be allowed to press a claim in a live dispute. They argue for limited

rules of standing because, they claim, a liberal standing rule increases the costs

of engaging in any rule-governed transaction.

 

Landes and Posner (1994) address the first question concerning the

justification of a requirement of a concrete case to trigger the adjudicatory

power. They extend a model of legal advice developed by Shavell (1988, 1992)

and Kaplow and Shavell (1992) to investigate questions concerning the use of

attorneys to the question the case or controversy requirement. They focus on the

distinction between type 1 and type 2 error - the wrongful attribution of liability

to defendants versus the wrongful excusal from liability of defendants. They

argue that this distinction can be deployed to explain much of the observed

pattern of exceptions to the case or controversy requirement. Specifically, they

note that anticipatory adjudication, in violation of the concreteness

requirement, increases both errors. They then examine in detail the institutions

of declaratory judgments, res judicata, advisory opinions, and preliminary

injunctions.

 

Stearns (1995, 1996) argues that the case or controversy requirement serves

to restrict the occurrence of cycling that plagues institutions of social choice.

For a fuller discussion, see the section on collegiality in Chapter 7200.

 

Specialized courts vs. courts of general jurisdiction Over what disputes should

a court have jurisdiction to decide? Two methods for defining the subject matter

jurisdiction of courts predominate. First, and most commonly, a court might

have jurisdiction over any dispute that arises within a specified geographic

area. Virtually all court systems consist primarily of these courts of general

jurisdiction. Second, a court might have jurisdiction over disputes with a

specified subject matter. Notice that these organizational patterns could be

applied to courts of first instance (that find facts as well as apply law) only, to

appellate courts only, or to both courts of first instance and to appellate courts.

Moreover, in a system with specialized courts of first instance but appeal to

courts of general jurisdiction, one could limit appeal to a single general court

of jurisdiction or one could allocate non-exclusive jurisdiction to a number of

appellate courts. In the United States, one may understand the administrative

law structure as establishing administrative agencies as specialized courts to

determine the facts and make initial legal rulings that are then appealed to

courts of general jurisdictions. Thus most labor disputes, welfare disputes and

immigration disputes are first heard in administrative agencies and then, if

necessary, appealed to the federal courts of appeals. In these instances, each of

the federal courts of appeal has jurisdiction to hear appeals from these

specialized tribunals. Many environmental disputes, by contrast, may only be

appealed to the US Court of Appeals for the DC Circuit. Finally, there are some

specialized courts of appeal such as the tax court and the federal circuit for

Court of Appeals for the Federal Circuit which has jurisdiction over patent and

other intellectual property disputes. What is the appropriate way to allocate

jurisdiction among courts?

 

Posner (1985) argues that specialized appellate courts are likely to be more

ideological than courts of general jurisdiction because judges on specialized

courts are likely to be more focused on the subject matter of their jurisdiction

and hence more likely to be sensitive, and responsive, to controversy.

 

Revesz (1990) analyzes the desirability of vesting appellate authority over

administrative agencies in specialized courts. His analysis emphasizes the effect

of the nature of the appellate court’s jurisdiction on legislative ability to control

agencies. He argues that review by specialized courts reduces the effectiveness

of congressional delegation to administrative agencies. He develops a simple

principal-agent model in which Congress is the principal and the

administrative agency the agent. They have different policy preferences because

commissioners in agencies have terms that do not correspond to the terms of

the commissioners and because there may be a divergence in preferences

between Congress and the President who appoints the head of many agencies.

Congress has three mechanisms for the control of agencies: it may overrule

particular decisions, it may exercise oversight through one or more committees,

and it may alter the agency’s budget. Congress, however, might also use the

courts to monitor the agency. Revesz argues that a court of general jurisdiction

is a better monitor.

 

3.4 Court Congestion

Comparative law scholars have often noted the variation in ‘litigiousness’

across countries. There is little economic literature that seeks to explain this

cross-cultural variation but there is a substantial literature analyzing the causes

of ‘congestion’ in the courts of one notably litigious society, the United States.

 

Virtually every proposal to reduce court congestion in the United States

federal courts recommends the abolition of diversity jurisdiction which grants

federal courts the authority to resolve disputes between citizens of different

states, even when they involve only questions of sate law. One justification for

diversity is that it prevents discrimination against out-of-state residents.

Goldman and Marks (1980) tested this claim by looking at two samples of

attorneys drawn from the US District Court for the Northern District of Illinois

in 1976. They randomly sampled 200 attorneys tied to specific questions and

asked them their reasons for litigating in federal court. They had a 62 percent

response rate. In addition they randomly sampled 205 attorneys from the law

division of Cook County District Court in 1976; this court had a $15,000

amount a controversy minimum so that the cases within its jurisdiction were

reasonably comparable to those within the jurisdiction of the federal court. This

survey had only a 37 percent response rate. Only 40 percent of the attorneys in

federal court listed local bias as a reason for choosing federal court. Attorneys

drawn from state court cases were asked to consider a hypothetical case

identical to the one litigated but in which their client was an out-of-state

resident. Roughly 25 percent said they would file in federal court. Local bias

thus had very little influence on the choice of forum.

 

Noam (1981) attempts to assess the social cost of court congestion by

calculating the effects of congestion on criminal sentences and then on the

crime rate. He argues that plea bargain reached between prosecutor and

defendant will depend on the caseload of the court. The higher the caseload per

judge, the lower the average sentence. Moreover, he argues that the per capita

crime rate is a function of the average sentence. Using simple specifications of

these functional relations he derives an equation that represents the marginal

effect of additional resources devoted to the criminal courts. He then estimates

his equation using FBI data on crime rates for four types of crimes against

property in the District of Columbia. This estimation yields very high marginal

returns to increased investment in the court system.

 

4. Fact-Finding

 

To resolve disputes, courts must determine the facts. A substantial portion of

procedural rules govern the fact-finding process. Each of these rules influences

the structure of the judicial system because each influences the cost of litigation

relative to the cost of settlement and to self-help remedies. (The literature on

evidence and the choice between settlement and litigation are summarized

elsewhere in this volume.) Some procedural rules play a more central role in

the organization of court systems. In this section, I examine the structure of

trials and the use of juries, a characteristic element of many but not all court

systems.

 

4.1 Sequential vs. Unitary Trials

Most disputes present more than one factual issue for resolution. Should these

be resolved simultaneously or sequentially? In the United States, factual issues

are generally resolved simultaneously, but often the question of liability and the

question of remedy are decided sequentially, sometimes by different

fact-finders.

 

Landes (1993) presents the primary investigation of this issue. He modifies

his own, early model of the choice between settlement and litigation (see

Landes, 1971) to analyze several issues concerning the effect of trial structure

on the settlement rate. The analysis rests on the insight that a sequential

structure to the litigation reduces the expected cost of litigation. Hence, the

plaintiff’s incentive to sue increases, which implies that the number of lawsuits

will increase. Landes argues further that sequential trials reduce the probability

of settlement because they narrow the range of acceptable settlements.

 

4.2 Juries

Many legal systems divide the law-finding (or law-applying) and fact-finding

functions of trial courts. These systems delegate fact-finding to a jury, generally

a group of lay individuals chosen more or less randomly to decide one case.

This procedure raises several questions.

 

Jury selection Bowles (1980) compares the cost of jury trials in Britain to the

cost of a system of fact-finding by a three-judge court. The cost of a jury trial

consists primarily of the production foregone by persons serving on the jury.

Bowles notes that high wage earners will attempt to avoid jury service more

vigorously than low wage earners. He concludes that a jury trial will be less

expensive if the cost of a judge is more than three times the cost of a juror. He

does not, however, correct for the speed of the trial.

Martin (1972) also estimates the social cost of the jury system in the United

States. He first estimates the occupational distribution of jurors on the

assumption that juror days of service are distributed identically to jurors. He

then multiplied by the median daily wage rate for each occupation and

estimated the social cost at $233 million ( $135 million) in 1958 dollars. He

then compares the cost of two systems of jury selection: random selection and

a ‘keyman’ procedure in which lists are constructed through consultation with

community leaders. He finds that random selection is significantly less

expensive because community leaders are more likely to draw jurors from high

wage occupations than random selection. Finally Martin argues that voluntary

service would reduce costs even further.

 

Jury size and jury voting rules Models of jury size and the effects of jury voting

rules must specify how juries deliberate and vote. Many models assume no

deliberation. Moreover, until recently, the literature assumed that each juror

voted conscientiously; her vote expressed her view of the guilt or innocence of

the defendant. When one assumes in addition that each juror is more likely

than not to decide correctly and that jurors’ judgments are independent of each

other, the Condorcet jury theorem applies and one can easily show first, that a

unanimity rule minimizes the probability of wrongful convictions; second, that

majority rule maximizes the probability of a correct decision; and third, that,

as the number of jurors increases, the probability of wrongful conviction under

a unanimity rule decreases towards zero and the probability of a correct

decision under majority rule increases towards one. Recently, however, analysts

have introduced models of strategic voting by jurors and these models yield

dramatically different results.

 

Austen-Smith and Banks (1996) and Feddersen and Pesendorfer (1996)

show how radically the assumption of strategic behavior by jurors undermines

the Condorcet Jury Theorem. When a juror acts strategically, the information

aggregation feature of the Condorcet Jury Theorem disappears because each

juror now decides how to cast her vote in light only of those instances in which

her vote will be pivotal. As a consequence, as Austen-Smith and Banks show

clearly, a juror’s vote may not reveal her actual view concerning the case.

Feddersen and Pesendorfer show, more dramatically, that the probability of

wrongful conviction may be higher under a unanimity rule than under a

different voting rule.

 

These models raise important questions about the appropriate way in which

to model juries. These questions parallel those presented in the study of

collegial courts, discussed in Chapter 7200, where team models in which judges

act in a fashion somewhat analogous to the assumption underlying the naive

Condorcet Jury Theorem models contend with political models in which judges

act strategically.

 

In the United States, until the 1970s, juries typically consisted of twelve

individuals and required unanimity to render a verdict. Then, the United States

Supreme Court ruled that neither the number twelve nor unanimity were

constitutionally required in state criminal proceedings. These decisions spurred

research into the importance of these requirements.

 

Klevorick and Rothschild (1979) provide a model of jury deliberation in

order to determine whether non-unanimous juries or unanimous juries of fewer

than twelve jurors would yield different verdicts than the ‘standard’,

twelve-person unanimous jury. Their analysis uses a stationary Markov model

to provide a dynamic model of the majority persuasion hypothesis, derived from

Kalven and Zeisal (1966), that the final verdict is the same as the majority

position on the first ballot. They offer both a discrete and continuous model of

jury deliberation. The cores of the models are identical. The jurors enter the

jury room with a view on the merits and cast an initial ballot. The vote then

changes incrementally as time passes with one person changing her vote at

each instant until unanimity is reached. The transition probabilities are given

by the current vote: the probability of one more vote for the plaintiff equals the

percentage of jurors who favor the plaintiff’s case. In this model one can

calculate both the expected number of jury ballots until unanimity is reached

(conditional on the initial vote) and the probability that a non-unanimous jury

will agree with a unanimous one. Klevorick and Rothschild show that a move

to a requirement of ten votes for judgment rather twelve always alters the

probability of conviction by less than 0.0055. Their result, of course, depends

critically on the manner in which majority pressure operates in the jury room.

When they adopt a different assumption concerning transition probabilities,

they calculate that the move to ten for judgment may lead to as many as 1/6 of

the cases decided differently. Klevorick and Rothschild also show that this shift

substantially reduces the expected number of ballots prior to judgment.

 

Schwartz and Schwartz (1992, 1995, 1996) offer a somewhat different

approach to jury decision making. The earliest paper addresses three questions

concerning the decision rules of juries. First, why do juries fail to reach a

verdict? Second, what verdict will a jury reach when it may convict for lesser

included offenses or when multiple offenses are litigated simultaneously?

Third, how, if at all, will the jury decision rule alter the charges filed by

prosecutors? To this end, they assume that a defendant might be charged with

any number of counts within some interval. They consider two regimes. In one

the prosecutor chooses one count in the interval, and the jury must choose

among three outcomes, conviction on that count, acquittal, or no decision. In

the second regime, the prosecutor chooses two counts, one entailing a lesser

punishment than the other, and the jury chooses among four outcomes,

acquittal on both counts, conviction on the lesser count, conviction on the more

severe count, or no decision. In the event of no decision, a retrial before a

different jury occurs. Each jury consists of four people, chosen randomly from

a population. Each potential juror is an expected utility maximizer,

characterized by spatial ‘preferences’ for punishment of the defendant; that is,

each juror has an ideal outcome that represents the crime for which she believes

the defendant should be convicted. The simple model implies that a defendant

always prefers a non-unanimous, super-majority rule to unanimity because his

expected verdict is lower under the non-unanimous rule. This result occurs

because, though the probability of conviction is greater under non-unanimity,

the probability of acquittal rises more rapidly. When the jury may convict on

a lesser included offense, the analysis is more complex and less clear-cut.

 

Schwartz and Schwartz (1995) extend the analysis of their prior article in

the context of the liability and punishment phases of capital offenses in the

United States. They argue that the decision process for fact finding has three

elements: the voting rule, the jury selection process, and the characterization

of the set of outcomes among which the jury may choose. They argue that, in

a multi-stage fact-finding process, the voting rule must be the same in each

stage in order to avoid the jury at one stage nullifying the law governing the

jury at a different stage. In addition, only reciprocal voting rules will avoid

hung juries (where a rule is reciprocal if ‘conviction’ requires c of n votes then

‘acquittal’ requires n - c of n votes).

 

Schwartz and Schwartz (1996) carries the argument of the prior two papers

further. They argue that any voting rule should satisfy at least two properties:

(1) it should be decisive; and (2) it should satisfy the ‘one person/one vote’

criterion. This second property does not eliminate any anonymous voting rule,

whether majority, supermajority, or submajority. (Super and submajority rules

would violate neutrality). The first criterion identifies majority rule as the

unique decisive voting rule when there are only two possible outcomes. To

satisfy the desire to minimize wrongful convictions that the unanimity rule is

said to promote, Schwartz and Schwartz argue that the size of the jury should

be increased perhaps to 15.

 

5. Concluding Remarks

 

Economic analysis of judicial organization and administration, though it has

greatly increased understanding, is only in its infancy. No question has received

an exhaustive treatment and many have not been examined at all.

This area suggests a multitude of comparative questions, most of which

have not received any attention at all. They are ripe for analysis.

 


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