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Judges as satisficers: a law and economics perspective on judicial liability

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Abstract

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.

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Notes

  1. In both civil law and common law countries, judges are formally addressed as “Your Honor” or “Your Lordship” and are commonly referred to with their title (e.g. “the Honorable Mr./Madame Justice…”).

  2. Taking into consideration that highly publicized cases bring public opinion into the court-room, we also consider the extent to which public opinion undermines judicial independence.

  3. Writing on the expressive function of laws, Cooter (1998: 596–597) points out that law breeds respect by tracking morality.

  4. Under Posner’s view of legal pragmatism, wise judges realize the virtues of following precedent—the value of certainty in law, the importance of the reliance interest, the wisdom that inheres in some of the common law—but they are free to ignore it when they can do more good by ignoring it.

  5. Young judges develop a taste for following precedent because they do not want to decrease their chances of promotion within the ranks of the judiciary. They are also more likely to be concerned with reputational costs and to see building a good name in terms of impartiality as closely interwoven with their professional prestige.

  6. By contrast, the Klein-Leffler (1981) model used to explore reputation and product liability in the literature is about trust when information is asymmetric.

  7. Posner thinks of satisficers as non-maximizers. He explains: “I wouldn’t call an artist a satisficer just because he can’t hope to maximize beauty any more than a judge can maximize justice or achieve 100% correctness”.

  8. Brilliant judges are Posner’s “judicial titans” (1994).

  9. See esp. Gennaioli and Shleifer (2006) who construct a model for judicial fact discretion, defined as misrepresentation in a judge’s decision of facts revealed in a trial.

  10. Simon describes the principle of “bounded rationality” as follows: “The capacity of the human mind for formulating and solving complex problems is very small compared with the size of the problems whose solution is required for objectively rational behavior in the real world—or even for a reasonable approximation to such objective rationality” (Simon 1957: 198).

  11. Simon himself rejected the classic economic assumptions of managers as economic maximizers making optimal decisions based on acquiring full information. Instead, he believed “administrative man” was a more descriptive model: managers are “satisficers” who seek the first satisfactory solution, based on limited information (“bounded rationality”).

  12. Leibenstein (1966) expanded on the notion of satisficing with his concept of X-inefficiency, which refers to profits when they fall short of their maximum potential due to selective rationality, individual inadequacies, discretionary effort, pervasive inertia, and organizational entropy. For recent applications in organizational behavior, see generally Moorhead and Griffin (2003).

  13. See Jones (1999: 302–305) and more generally Marcus et al. (2000: 65–125). Williamson (1985) has linked the incompleteness of contracts with the bounded rationality in foreseeing the future.

  14. For a classic early discussion of the use of heuristics in decision making, see esp. Kahneman et al. (1982). See Hatzis (2000) for an overview of heuristic models.

  15. The situation is different in higher courts and there are countries (like the US) in which virtually all judges have some law clerk assistance. In the US Supreme Court each justice may have up to four clerks to help with the research and writing that are required for each case.

  16. Under Simon’s perspective, information consumes the attention of its recipients. Hence a wealth of information creates a poverty of attention, and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.

  17. Polinsky and Shavell (1989: 99) have studied the effects of legal errors on the decision to bring suit. They distinguish between “type I” errors in which truly guilty defendants escape liability and “type II” errors, in which truly innocent defendants are found liable.

  18. Path dependence encourages adaptive or reproductive choices when legal actors confront new and different streams of information about law or policy.

  19. The principal-agent framework can also be used to elucidate aspects of the attorney-client relationship: while the parties’ attorneys could reduce these information problems (because they have more experience and background knowledge than their clients do), their incentive to “sign up” the client, and then their incentive to rack up billable hours, may prevent them from disabusing their clients of their initial optimism (http://law.marquette.edu/moss/BehavioralAbstract.pdf).

  20. The process of adjudication can be schematized as an incentive system for all participants: judges, claimants/appellants and their representatives (the lawyers and other parties like mediators). In such a system, reward and punishment stand in balanced tension with each other. As noted by Andreoni et al. (2003: 901), “when devising incentive systems it is important to recognize that in some environments the absence of a reward is not equivalent to a punishment—it is important that both tools be present”.

  21. See below under part 4.

  22. Alternative Dispute Resolution methods developed in the US out of a need to deal with clogged court dockets and to improve a slow-moving, overburdened and inefficient system. The widespread use of mediation has shifted many of the traditional roles within the legal profession. Research confirms the potential of ADR processes to bring about faster, cheaper and more effective resolutions of disputes. Their success as effective alternatives to traditional litigation explains why interest in ADR processes has peaked in both the US and Europe in the past thirty years.

  23. One could even think of some degree of liability introduced for the human resource managers of the judiciary (thanks to Leonor Rossi for this insightful point).

  24. See Judge Learned Hand in United States v. Carroll Towing Co., 159 F. 2d. 169 (2d Cir. 1947). This “Learned Hand Formula”, which in fact introduced the use of cost-benefit analysis in the assignment of liability, may be characterized as the cornerstone of the economic analysis of tort law.

  25. See Art. 97 (1) of the German Constitution; Art. 87 (2) of the Greek Constitution; Art. 104 Italian Constitution. Cf. also Art. 64 of the French Constitution.

  26. These guarantees may pertain to issues such as the tenure of their office, their promotion, their relocation etc. For Germany, see Deutsches Richtergesetz (DRiG), esp. §§ 25–37; for Greece, see Arts. 87–91 of the Constitution, as well as the Code on Court Rules and Judges’ Status (Law 1756/1988), esp. Arts. 49–53; for Italy, see Verde (1999: 6–9); for the Netherlands see van Bogaert (2006: 179).

  27. These concerns are particularly strong in the common law countries that have therefore opted for a regime of judicial immunity from civil liability. See Lucas (1906–1907: 419), Shaman (1990: 4), as well as infra, under section 5.3.3 A. On the relation between judicial independence and judicial liability in European legal orders see, among many others, Grunsky (1974: 152–153) for Germany, Joly-Hurard (2006: 447) and Cadiet (1992: 249–250) for France and Yessiou-Faltsi (1982–1983: 283) for Greece.

  28. This is invoked as the main reason for the restrictions concerning the liability of judges for judicial acts in Germany. See Papier (2009: § 34 GG, N. 262), Vinke (2005: § 839 BGB, N. 208), Wurm (2007: § 839 BGB, N. 317) and Meyer (2005: 864). See also Lucas (1906–1907: 419).

  29. Lucas (1906–1907): 419. See also van Bogaert (2006: 197), who mentions that this was the main argument used by the government for the introduction of judicial immunity from civil liability in the Netherlands. Cf. Meyer (2005: 865).

  30. Federalist Paper N. 65. See also Monahan (2000: 429), arguing that in American jurisprudence, the sanctions imposed on judges intend to correct the system rather than compensate individual loss. Therefore, society views judicial misconduct primarily as an offense against the public and the legal system, rather than an offense against any individual member of society.

  31. At this point it is worth noting that in some continental legal orders, like Germany (§ 823 German Civil Code), Switzerland (Art. 41 of the Code of Obligations) and Greece (Art. 914 of the Greek Civil Code), the conditions of civil liability pertain to an illegal and culpable (negligent or intentional) act of the tortfeasor. On the other hand, the French concept of “faute” (Art. 1382 of the French Civil Code) and the English concept of “breach of duty” encompass both illegal and culpable behaviour. The concept of “inexcusable judicial error” emanates from the second approach. In any case, the practical differences between these two approaches are insignificant, since, in view of the special role of the judge, judicial errors can be characterized as illegal per se.

  32. Exactly so in the French Cour de Cassation, Cass civ. 1ère 20.2.1996, Bull. civ. I n. 94. In more detail, see Cavinet/Joly-Hurard (2004: 26).

  33. Arrêt du 23 février 2001, Bull., n. 5, p. 10.

  34. See the wording of Art. L. 141-1 of the new French Code of Judicial Organization (“… réparer le dommage causé par le fonctionnement défectueux du service de la justice.”).

  35. The overburdened caseload is such a widespread problem that appeals have been submitted against many countries before the European Court of Human Rights for violation of Art. 6 para. 1 of the European Convention on Human Rights: “[…] everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Thus, in a number of legal orders inordinate delays are set equal to denial of justice. See Art. 6 para. 2 of Greek Law 693/1977; § 839 (2) of the German Civil Code. For the Netherlands see van Bogaert (2006: 200) and for France see Cadiet (1994: 516).

  36. See Decision 7/1977 of the Greek Special Court for Mistrial, Nomiko Vima (Law Review) 1978, 416. The same opinion has been adopted by the Decision 12/2003 of the Greek Special Court for Mistrial, published in the legal database “Isokratis”of the Athens Bar Association.

  37. See the landmark case of the European Court of Justice Köbler v. Austria, C-224/01 of 30.9.2003, European Court Reports 2003, p. I-10239, in which the ECJ ruled that a state may be held liable and be condemned to damages upon the breach of European law by the magistracy. In this particular case the infringement of European law consisted in the rejection of the plaintiff’s claim by the Court of last instance, without having previously referred to the ECJ for the clarification of the disputed issue, although the plaintiff had invited the court to do so and the issue in question was an issue of European law.

  38. Cf. Decision 22/1997 of the Greek Special Court for Mistrial, which dismissed the plaintiff’s claim for damages, published in the legal database “Intrasoft-Nomos”.

  39. Cour d’Appel de Paris 25.10.2000, RTDciv 2001, 125. It is worth noting that two years prior to this decision the mother had been hospitalized, because in a hallucinatory delirium she had attacked (and eventually killed) a third person.

  40. In legal orders where the principle of proportionality is explicitly recognized by the law, this would actually constitute a legal error.

  41. Supra at note 33.

  42. Especially in criminal proceedings the right of appeal is provided by Art. 2 of the 7th Protocol of the European Convention of Human Rights.

  43. Cf. Iossa and Palumbo (2007) according to whom a system in which parties provide the appellate bodies with information on the initial judgment is preferable to the system in which this is performed by an independent investigator.

  44. Cf. also Levy (2003) arguing that ambitious judges have a tendency to contradict previous decisions in order to draw attention to their own original judgment.

  45. See also infra, under section 5.3.2.

  46. See however Haley (2006: 291), noting that in 23 States the initial term of office is six years or less, while in other 11 states, the terms vary from seven to ten years.

  47. See, inter alia, http://www.hematite.com/impeachment/standards/rpt6.html.

  48. We find an exception to this rule in Israel, where judges enjoy full immunity from criminal liability when they act in the exercise of their duties (Kling 2006: 4). Cf. also Serbia, where judges enjoy the same status as Members of Parliament (Knežević Bojović 2006: 8).

  49. See Art. 434-9 of the French Penal Code; Art. 237 of the Greek Penal Code; §§ 331 (2) and 332 (2) of the German Penal Code; Art. 364 of the Dutch Penal Code; Art. 322quater and 322sexies of the Swiss Penal Code.

  50. See Art. 432-4 of the French Penal Code, Art. 239 of the Greek Penal Code, Art. 365 of the Dutch Penal Code and § 302 of the Austrian Penal Code. Cf. § 339 of the German Penal Code.

  51. See § 258a of the German Penal Code, which applies if the judge does not sentence a defendant, although he knows that he/she is guilty (Wagner 2006: 13).

  52. See § 239 of the German Penal Code, which also applies in cases of false imprisonment (Wagner 2006: 13).

  53. See Art. 434-7-1 of the French Penal Code. In Greece denial of justice would fall within the scope of the offence of violation of duties (Art. 259 of the Greek Penal Code). However, denial of justice is no longer a criminal offence in the Netherlands (van Bogaert 2006: 209–210).

  54. See Art. 259 of the Greek Penal Code. Cf. § 339 of the German Penal Code.

  55. See for instance Art. 262 of the Greek Civil Code.

  56. In Germany a distinction should be made between federal judges and judges at the state courts. In the first case disciplinary proceedings may be launched by certain higher judges. In the second case the relevant provisions vary from one state to the other. However, the procedure is usually initiated by the Minister of Justice of the particular state (Wagner 2006: 16). In Greece the Minister of Justice may launch any proceedings, while some proceedings may also be initiated by certain higher judges (in more detail Makridou 2006: 162). The regimes in France (Canivet and Joly-Hurard 2004: 16–17) and in Italy (Verde 1999: 16) are similar.

  57. For Finland, see Niemi (2006: 9) and for Israel see Kling (2006: 11).

  58. There is a strong sense of collegiality among judges. This is likely to influence their ability to judge other judges. In fact, judges may be prejudiced precisely because of their high degree of empathy (putting themselves in the shoes of other judges). We owe this good point to Judge Evgeni Georgiev.

  59. See, for instance, Kerbaol (2006: 35), who refers to the French Conseil Supérieur de la Magistrature (Art. 65 of the French Constitution). Many similarities are found in the composition of the Italian Consiglio Superiore della Magistratura (Verde 1999: 16) and the composition of the Greek Supreme Disciplinary Council (Art. 91 of the Greek Constitution) (Makridou 2006: 163). On the composition of Disciplinary Commissions in the United States, see Haley (2006: 288–289). Cf. also Wagner (2006: 17), writing on the German Disciplinary Courts.

  60. See also supra, under section 5.2.

  61. See, for instance, the reports submitted by the Supreme Court of Ireland and the Supreme Court of Canada in the context of the study of the Network of the Presidents of the Supreme Judicial Courts of the European Union on Judge’s liability. Cyprus represents a similar case, as it is a mixed jurisdiction. More precisely, according to the report of the Supreme Court of Cyprus, judicial immunity from civil liability is provided for in section 4 (3)(4) of the Cypriot Civil Wrongs Law. The above-mentioned reports are available online at: http://www.network-presidents.eu/spip.php?rubrique79.

  62. For a comprehensive note on this case, see Burke (1979).

  63. Judges do not receive immunity for their administrative decisions, such as in hiring and firing court employees (Forrester v. White, 484 US 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 [1988]).

  64. For example, if a judge requires the posting of bail by persons charged in criminal court with offences for which they cannot be jailed and the person subjected to this unconstitutional practice files suit against the judge, the judge will not be given judicial immunity and, upon losing the case, will be forced to pay the plaintiff's attorneys' fees and court costs (Pulliam v. Allen, 466 US 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 [1984]). On this issue, see Haley (2006: 285–286).

  65. The same holds for England: Crown immunity was brought to an end by the Crown Proceedings Act of 1947. Nevertheless, according to section 2 (5) of the said act, no action can be brought against the Crown for any responsibility of a judicial nature. See Clerk (2006): N. 5-14).

  66. Articles L. 141-1 and 141-2 of the new French Code of Judicial Organization, actually repeat the provisions of Art. L. 781-1 of the old Code, which had been introduced by the law of 5th July 1972.

  67. For the notion of grave judicial error in French law, see supra, under section 4.

  68. Also for inordinate delays, see supra note 35.

  69. Cf. Kassimatis (1973: 112, 116) and Schuck (1989: 666–667). However, Kerbaol (2006: 23) is skeptical on this issue.

  70. Since January 1, 1997 judges were no longer personally liable for the damage caused by the exercise of their powers. Since January 1, 2002 the civil liability of judges because of denial of justice has also been abolished, thereby extinguishing the scope of personal judicial liability (van Bogaert 2006: 195–196).

  71. See Makridou (2006: 156–157), who notes the contrary opinion of the legal theory.

  72. In German: Urteil in einer Rechtssache. For more details on the decisions which fall within the scope of “Judgment in a legal matter”, see Vinke (2005): § 839 BGB, N. 210-211 and Wurm (2007): § 839 BGB, N. 318-331.

  73. In this case § 839 (1) is applicable. This paragraph actually provides for civil liability in all cases of culpable behavior. However, according to the German Supreme Court (Bundesgerichtshof—BGH) in view of the need to preserve judicial independence judges may not be held liable in cases of simple negligence. See Decision of the BGH of 3.7.2003, NJW 2003, 3052 and Wagner (2006: 6).

  74. According to Art 34 of the Constitution, this right exists in all cases in which a public servant acted in a manner that was grossly negligent or intentional.

  75. See supra, under section 4.

References

  • Andreoni, J., William, H., & Lise, V. (2003). The carrot or the stick: Rewards, punishments, and cooperation. American Economic Review, 93, 893–902.

    Article  Google Scholar 

  • Black’s Law Dictionary (2004). A. G. Bryan (Ed.). St. Paul, MN: West.

  • Bowles, S., & Gintis, H. (2002). Homo reciprocans. Nature, 415, 125–128.

    Article  Google Scholar 

  • Brand, G. E. (1960). The discipline of judges. American Bar Association Journal, 46, 1315–1317.

    Google Scholar 

  • Brisbin, R. A. (2004). The strange estrangement of judicial politics: Law and courts in and out of political time. Presented at the Western Political Science Association meeting, Portland, OR, March 2004.

  • Burke, W. T. (1979). Judicial immunity-tort liability of a state court judge in granting the sterilization of a minor without due process: Stump v. Sparkman. Howard Law Journal, 22, 129–141.

    Google Scholar 

  • Cadiet, L. (1992). Droit judiciaire privé. Semaine Juridique N. 3587.

  • Cadiet, L. (1994). Droit judiciaire privé. Semaine Juridique N. 3805.

  • Caldeira, G. A., Wright, J. R., & Zorn, C. (1999). Strategic voting and gatekeeping in the Supreme Court. Journal of Law Economics and Organization, 15(3), 549–572.

    Article  Google Scholar 

  • Canivet, G., & Joly-Hurard, J. (2004). La déontologie des magistrats. Paris: Dalloz.

    Google Scholar 

  • Clerk, L. (2006). On torts (19th ed.). London: Sweet & Maxwell.

    Google Scholar 

  • Coleman, J. (1988). Social capital in the creation of human capital. American Journal of Sociology, 94S, S95–S120.

    Article  Google Scholar 

  • Comisky, M., & Paterson, P. (1987). The judiciary–selection, compensation, ethics and discipline. New York: Quorum Books.

    Google Scholar 

  • Cooter, R. (1983). The objectives of private and public judges. Public Choice, 41, 107–132.

    Article  Google Scholar 

  • Cooter, R. (1998). Expressive Law and Economics. UC Berkeley: Berkeley Program in Law and Economics. Retrieved from http://escholarship.org/uc/item/3w34j60j.

  • Fehr, E., & Gachter, S. (1998). How effective are trust-and-reciprocity-based incentives? In A. Ben-Ner & L. Putterman (Eds.), Economics, values, and organization. New York: Cambridge University Press.

    Google Scholar 

  • Fry, B. R. (1989). Mastering public administration: From Max Weber to Dwight Waldo (Chatham House series on change in American politics) (2nd ed.). New York: Chatham House Publishers.

    Google Scholar 

  • Gennaioli, N., & Shleifer, A. (2006). Judicial Fact Discretion. NBER Working Paper No. 12679.

  • Gibson, J. L. (1983). From simplicity to complexity: The development of theory in the study of judicial behavior. Political Behavior, 5(1), 7–49.

    Article  Google Scholar 

  • Gigerenzer, G. (2002). The adaptive toolbox. In G. Gigerenzer & R. Selten (Eds.), Bounded rationality: The adaptive toolbox. Cambridge, MA: MIT Press.

    Google Scholar 

  • Gigerenzer, G., & Selten, R. (2002). Rethinking rationality. In G. Gigerenzer & R. Selten (Eds.), Bounded rationality: The adaptive toolbox. Cambridge, MA: MIT Press.

    Google Scholar 

  • Gilboa, I., & Schmeidler, D. (1995). Case-based decision theory. Quarterly Journal of Economics, 110, 605–639.

    Article  Google Scholar 

  • Goré, M. (2007). La responsabilité civile, pénale et disciplinaire des magistrats. Electronic Journal of Comparative Law, 11.3 (December 2007). Available online at: http://ejcl.org.

  • Grunsky, W. (1974). Zur Haftung für richterliche Amtspflichtverletzungen. In F. Baur, J. Esser, F. Kübler, & E. Steindorff (Eds.), Funktionswandel der Privatinstitutionen—Festschrift für Ludwig Raiser (pp. 141–158). Tübingen: J.C.B. Mohr.

    Google Scholar 

  • Hagle, T. M. (1990). So many cases, so little time: Judges as decision makers. In D. Madsen, A. H. Miller, & J. A. Stimson (Eds.), American politics in the heartland. Dubuque, Iowa: Kendall/Hunt.

    Google Scholar 

  • Haley, J. O. (2006). The civil, criminal and disciplinary liability of judges. The American Journal of Comparative Law 54 (Supplement: American Law in the 21st Century: US National Reports to the XVIIth Congress of the International Congress of Comparative Law), 281–291.

  • Hansen, M. H. (1999). The Athenian democracy in the age of Demosthenes: Structure, principles and ideology (Reprint edition ed.). Norman, OK: University of Oklahoma University Press.

    Google Scholar 

  • Hatzis, A. (2000). Heuristic models. In R. J. B. Jones (Ed.), The Routledge Encyclopedia of International Political Economy (Vol. 2, pp. 674–675). London and New York: Routledge.

    Google Scholar 

  • Hirschman, A. (1985). Against parsimony: Three easy ways of complicating some categories of economic discourse. Economics and Philosophy, 1, 7–21.

    Article  Google Scholar 

  • Iossa, E., & Palumbo, G. (2007). Information provision and monitoring of the desicion-maker in the presence of an appeal process. Journal of Institutional and Theoretical Economics, 163, 657–682.

    Article  Google Scholar 

  • Joly-Hurard, J. (2006). La responsabilité civile, pénale et disciplinaire des magistrats. Revue Internationale de Droit Comparé, 58, 439–475.

    Google Scholar 

  • Jones, B. D. (1999). Bounded rationality. Annual Reviews in Political Science, 2, 297–321.

    Article  Google Scholar 

  • Jones, B. D. (2003). Bounded rationality and political science: Lessons from public administration and public policy. Journal of Public Administration Research and Theory, 13(4), 395–412.

    Article  Google Scholar 

  • Kahneman, D., Slovic, P., & Tversky, A. (Eds.). (1982). Judgement under uncertainty: Heuristics and biases. Cambridge: Cambridge University Press.

    Google Scholar 

  • Kassimatis, G. (1973). On the Greek system of civil liability due to wrongful judgments.” [in Greek]. In E. von Caemmerer, J. H. Kaiser, G. Kegel, M. Müller-Freienfels, & H. J. Wolff (Eds.), Xenion—Festschrift für Pan. J. Zepos (Vol. III) pp. 93–142. Athens-Freiburg-Köln: Ch. Katsikalis Verlag.

    Google Scholar 

  • Kerbaol, G. (2006). La responsabilité des magistrats. Paris: Presses Universitaires de France.

    Google Scholar 

  • King, M. R. (1978). Judicial immunity and judicial misconduct: A proposal for limited liability. Arizona Law Review, 20, 549–596.

    Google Scholar 

  • Klein, B., & Leffler, K. (1981). The role of market forces in assuring contractual performance. Journal of Political Economy, 89, 615–641.

    Article  Google Scholar 

  • Kling, G. (2006). The civil, criminal and disciplinary liability of judges. National Report: Israel, XVIIth Congress of the international academy of comparative law, Utrecht, 16–22 July 2006. Available online at: http://www2.law.uu.nl/priv/AIDC/PDF%20files/IIC1/IIC1%20-%20Israel.pdf.

  • Knežević Bojović, A. (2006). The civil, criminal and disciplinary liability of judges. National Report: Serbia, XVIIth congress of the international academy of comparative law, Utrecht, 16–22 July 2006. Available online at: http://www2.law.uu.nl/priv/AIDC/PDF%20files/IIC1/IIC1%20-%20Serbia.pdf.

  • Leibenstein, H. (1966). Allocative efficiency vs X-inefficiency. American Economic Review, 56, 392–415.

    Google Scholar 

  • Levy, G. (2003). Careerist judges, LSE STICERD Research Paper No. TE/2003/457. Available online at http://sticerd.lse.ac.uk/dps/te/te457.pdf.

  • Lucas, W. W. (1906–1907). Judicial liability. The Law Magazine and Review: A Quarterly Review of Jurisprudence, (5th series) 32, 417–424.

  • Makridou, K. (2006). The civil, criminal and disciplinary liability of judges under Greek law. Revue Héllenique de Droit International, 59, 151–166.

    Google Scholar 

  • Maltzman, F., & Wahlbeck, P. J. (1996a). May it please the chief? Opinion assignments in the Rehnquist court. American Journal of Political Science, 40, 421–443.

    Article  Google Scholar 

  • Maltzman, F., & Wahlbeck, P. J. (1996b). Strategic policy considerations and voting fluidity on the Burger court. American Political Science Review, 90, 581–592.

    Article  Google Scholar 

  • Marcus, G. E., Neuman, R. W., & McKuen, M. (2000). Affective intelligence and political judgment. Chicago: University of Chicago Press.

    Google Scholar 

  • Merryman, J. (1969). The civil law tradition. Stanford, CA: Stanford University Press.

    Google Scholar 

  • Meyer, S. (2005). Richterprivileg auch für Arrestbeschlüsse und einstweilige Verfügungen im Beschlusswege. Neue Juristische Wochenschrift, 58, 864–865.

    Google Scholar 

  • Monahan, M. A. (2000). The problem of ‘the judge who makes the case his own’: Notions of judicial immunity and judicial liability in ancient Rome. Catholic University Law Review, 49, 429–448.

    Google Scholar 

  • Moorhead, G., & Griffin, R. W. (2003). Organizational behavior: Managing people and organizations (7th ed.). Boston: Houghton-Mifflin.

    Google Scholar 

  • Niemi, A. (2006). The civil, criminal and disciplinary liability of judges. National Report: Finland, XVIIth Congress of the International Academy of Comparative Law, Utrecht, 16–22 July 2006. Available online at: http://www2.law.uu.nl/priv/AIDC/PDF%20files/IIC1/IIC1%20-%20Finland.pdf.

  • Papier, H.-J. (2009). In Grundgesetz Kommentar Maunz/Dürig, Art. 34 (Lieferung 54). München: C. H. Beck.

  • Polinsky, A. M., & Shavell, S. (1989). Legal error, litigation, and the incentive to obey the law. Journal of Law, Economics, and Organization, 5, 99–108.

    Google Scholar 

  • Posner, R. A. (1994). What do judges and justices maximize? (the same thing everybody else does). Supreme Court Economic Review, 3, 1–41.

    Google Scholar 

  • Posner, R. A. (2007). Economic analysis of law (7th ed.). New York: Aspen Publishers.

    Google Scholar 

  • Rasmusen, E. (1994). Judicial legitimacy as a repeated game. Journal of Law, Economics and Organization, 10, 63–83.

    Article  Google Scholar 

  • Rehnquist, W. H. (1992). Grand inquests: The historic impeachments of justice Samuel Chase and President Andrew Johnson. New York: William Morrow & Co.

    Google Scholar 

  • Schuck, P. H. (1989). Civil liability of judges in the United States. American Journal of Comparative Law, 37, 655–673.

    Article  Google Scholar 

  • Shaman, J. M. (1990). Judicial immunity from civil and criminal liability. San Diego Law Review, 27, 1–28.

    Google Scholar 

  • Shavell, S. (1995). The appeals process as a means of error correction. Journal of Legal Studies, 24, 379–426.

    Article  Google Scholar 

  • Shavell, S. (2006). The appeals process and adjudicator incentives. Journal of Legal Studies, 24, 1–29.

    Article  Google Scholar 

  • Simon, H. (1957). Models of man. New York: Wiley.

    Google Scholar 

  • Simon, H. (1982). From substantive to procedural rationality. In Behavioral Economics and Business Organization (Ed.), Models of bounded rationality (Vol. 2). Cambridge: MIT Press.

    Google Scholar 

  • Spitzer, M., & Talley, E. (2000). Judicial auditing. Journal of Legal Studies, 29, 649–684.

    Article  Google Scholar 

  • Sunstein, C. R. (Ed.). (2000). Behavioral law and economics. Cambridge: Cambridge University Press.

    Google Scholar 

  • Thelen, K. (2003). How institutions evolve: Insights from comparative historical analysis. In J. Mahoney & D. Rueschemeyer (Eds.), Comparative historical analysis in the social sciences. Cambridge: Cambridge University Press.

    Google Scholar 

  • van Bogaert, V. V. R. (2006). Le rapport néerlandais sur la responsabilité civile, pénale et disciplinaire des magistrats - Le juge néerlandais : Indépendant et irresponsable. In J. H. M. Van Erp & L. P. W. van Vliet (Eds.), Netherlands reports to the seventeenth international congress of comparative law-Utrecht 2006 (pp. 177–221). Antwerpen-Oxford: Intersentia.

    Google Scholar 

  • Verde, G. (1999). The Italian judicial system. Available online at: http://www.csm.it/documenti%20pdf/sistema%20giudiziario%20italiano/inglese.pdf.

  • Vinke, H. (2005). In Soergel, Bürgerliches Gesetzbuch (13th ed.) § 839. Stuttgart: Kohlhammer.

  • Wagner, G. (2006). The civil, criminal and disciplinary liability of judges. National Report: Germany, XVIIth congress of the international academy of comparative law, Utrecht, 16–22 July 2006.

  • Wahlbeck, P. J., Spriggs, J. F., I. I., & Maltzman, F. (1998). Marshaling the Court: Bargaining and accommodation on the US Supreme Court. American Journal of Political Science, 42, 294–315.

    Article  Google Scholar 

  • Williamson, O. (1985). The economic institutions of capitalism: Firms, markets, relational contracting. New York: The Free Press.

    Google Scholar 

  • Wurm, M. (2007). Staudingers kommentar zum bürgerlichen gesetzbuch (13th ed., pp. 839–839a). Berlin: Sellier-de Gruyter.

    Google Scholar 

  • Yessiou-Faltsi (1982–1983). Judicial responsibility in Greece. Revue Héllenique de Droit International, 35–36: 281-311.

  • Zorn, C. J. W. (1998). GEE models of judicial behavior. Available online at http://polmeth.wustl.edu/retrieve.php?id=270.

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Acknowledgments

The authors would like to thank Leonor Rossi, Emanuela Carbonara and Antonio Nicita for their helpful comments during the first presentation. Special thanks go out to Aristides Hatzis, Evgeni Georgiev and two anonymous referees for their suggestions on the last draft. Finally, we are indebted to Richard Posner for his valuable comments.

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  1. ALBA Graduate Business School, Athens, Greece

    Aspasia Tsaoussi

  2. Faculty of Business Administration of the University of Piraeus, Piraeus, Greece

    Eleni Zervogianni

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  1. Aspasia Tsaoussi
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  2. Eleni Zervogianni
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Correspondence to Eleni Zervogianni.

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Tsaoussi, A., Zervogianni, E. Judges as satisficers: a law and economics perspective on judicial liability. Eur J Law Econ 29, 333–357 (2010). https://doi.org/10.1007/s10657-009-9123-9

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