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Careerism and judicial behavior

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Abstract

Although often criticized by part of legal scholarship, the idea of judicial behavior being influenced by judges’ egoistic goals simply needs the appropriate institutional setting in order to be validated. In the present paper, the hypothesis of careerism affecting judges’ conduct is investigated with regard to the case of the Italian Constitutional Court, where judges only serve for a limited and non-renewable term of 9 years. This institutional framework allows to reasonably assume on a theoretical level the existence of career concerns among them. In order to maximize the chances of future appointments, judges try to earn as much reputation as possible among relevant audiences. Empirical evidence supports the theory that career concerns push judges to react to incentives that alter the reputational returns of their conduct. This result holds independently of judges’ personal characteristics that might influence their professional concerns.

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Notes

  1. The appointment is made by means of a presidential decree.

  2. Judges are elected by both chambers of the Parliament sitting in joint session with a special 60% majority, thus forcing agreements among the ruling coalition with opposition.

  3. Judges are elected by magistrates serving in the High Courts, with an absolute majority. A second ballot among the two most voted candidates takes place, if none reaches the quorum in the first vote.

  4. According to the Constitution, the ICC also has jurisdiction in the case of the President of the Republic’s impeachment, is responsible for deciding on the constitutional legitimacy of referendums and solves jurisdiction conflicts among constitutional bodies.

  5. Empirical evidence in support of this fact emerges from the data employed in this work (See infra Table 10). A statistically significant relationship relates the field of specializations of judges to the topic dealt in the case: it turns out that judges expert in criminal law will be assigned to cases regarding criminal legislation. The same remains true also for judges with a background in civil law or fiscal law, while Constitutional law experts in the ICC are employed as sort of factotum and thus homogenously assigned to cases dealing with any field of law.

  6. Although not being the first study directly addressing the issue of rational choice, this article has the merit of having largely influenced the following debate on the topic. Nevertheless, also other works had previously tried to interpret judges’ work adopting self-interest and Public Choice theory as working tools (Higgins and Rubin 1980; Cooter 1983). For a general survey of the following literature, see Shepherd (2011).

  7. Of course, the determinants of judicial behavior are not restricted to careerism. Another strand of literature has investigated the topic of ideology as a key element for explaining judicial decisions (Epstein and Knight 1997).

  8. For a general overview of the academic debate on this topic see, Epstein (1990), Schauer (2000) and Heise (2002).

  9. Significant exceptions in the opposite direction are represented by Cohen (1991), Taha (2004) and Epstein et al. (2013).

  10. This line of reasoning of course excludes US elected judges, whose position is much closer to the one of elected politicians and thus falls under a Public Choice approach (Posner 2005).

  11. This work concentrates only on the professional opportunities that judges seek after their office in the Constitutional Court is over. Strictly speaking, also a career path within the ICC might be identified, since the Court is chaired by a President elected among judges. Although the ICC President has substantial powers, in the considered time period (2002–2011) 16 different Presidents have headed the ICC: given an average presidency of 7.5 months, such office might be considered more as an honorary status for senior judges than a position for which compete.

  12. Only offices that were not the continuum of their previous occupation have been taken into consideration.

  13. Previous works deal with the different decision of declaring a law unconstitutional, when the case is entered in the merits (Fiorino et al. 2007; Padovano 2009) or with decisions over conflicts among constitutional bodies (Pellegrina and Garoupa 2013).

  14. Of the 1843 decisions considered in the present analysis, 1072 were not entered in the merits (58% of the total) while 771 were granted review (42%). Among the 771 decisions in the merits 605 (78% of this subsample) confirmed the constitutional legitimacy of the law while 166 (22%) disposed in favor of the illegitimacy.

  15. A Student’s t test revealed a highly statistically significant difference in the length of decisions according to the fact that they entered in the merits of cases or not (p value \({<}\)0.0001).

  16. In the very recent years, the ICC has decided over many relevant topics both for politics (electoral voting system or personal liability of Government’s member) and citizens (pensions or in vitro fertilization).

  17. When an judge forwards a request to the ICC, the original lawsuit is suspended until the ICC’s ruling.

  18. It is not the Prime Minister (nor other members of the Executive) to personally participate to the debate. This task is performed by the Avvocatura della Stato. However, this event still expresses a direct interest of the Government in the constitutional case.

  19. The ANM (Associazione Nazionale Magistrati) is the representative body of the Italian Judiciary. However, within the ANM, several components have emerged, differentiating their political connotations: Magistratura Democratica (Center-Left), Unitá per la Costituzione (Center) and Magistratura Indipendente (Center-Right).

  20. Constitutional review cases are brought to the ICC’s attention by the request of any judge in the event that a law being applied in an ordinary lawsuit is suspected to be in contrast with the Constitution.

  21. The Court of last resort for civil and criminal jurisdictions.

  22. According to Ruggieri and Spadaro (2008), a similar circumstance occurred only eight times since the ICC was established in 1956.

  23. The 1843 observations refer to 1424 rulings published by the Court. Such higher number of observations is due to the existence of in parte qua decisions, containing a plurality of judgements within a single ruling. Petitioners might raise several questions over which the ICC might rule separately in different ways (but in a unique decision). Accordingly, each individual ruling has been considered as a distinct observation.

  24. www.cortecostituzionale.it.

  25. Formally, \(\pi _{i}=\) Pr(REVIEW\(_{i}=1|\mathbf {X}_{i}\)), with \(\mathbf {X}_{i}\) a vector of all considered variables of interest.

  26. Specifically, models (2), (3) and (4) cluster standard errors at the Reporter’s level (28 clusters), while models (5), (6) and (7) cluster at the case’s level (1416 clusters).

  27. In order to deal with the high skewness of NUM_REQ, all tests were performed excluding the top 1% outliers. Accordingly, only decisions that had less than 34 requests where considered for the statiscal tests. Furthermore, the same tests were equally performed also excluding all appeals coming from a Supreme Court (of last resort), in order to account for their greater importance to judges’ eyes

  28. Padovano and Fiorino (2012) have tried to disentangle this issue, although focusing on a different sample of cases.

  29. This is due to the small number of decisions dealing with these kind of laws: once accounting for the the kind of legislation contained in the national budget, there is no sufficient variance left.

References

  • Breton, A., & Fraschini, A. (2003). The independence of the Italian Constitutional Court. Constitutional Political Economy, 14(4), 319–333.

    Article  Google Scholar 

  • Cohen, M. A. (1991). Explaining judicial behavior or what’s “unconstituitional” about the sentencing commission? Journal Law, Economics, and Organization, 7(1), 183–199.

    Google Scholar 

  • Cooter, R. D. (1983). The objectives of private and public judges. Public Choice, 41(1), 107–132.

    Article  Google Scholar 

  • Eisenberg, T., Fisher, T., & Rosen-zvi, I. (2013). Case selection and dissent in courts of last resort: An empirical study of the israel supreme court. In Y. Chang (Ed.), Empirical legal analysis: Assessing the performance of legal institutions. London: Rootledge.

    Google Scholar 

  • Eisenberg, T., & Huang, K. C. (2012). The effect of rules shifting supreme court jurisdiction from mandatory to discretionary—An empirical lesson from Taiwan. International Review of Law and Economics, 32(1), 3–18.

    Article  Google Scholar 

  • Epstein, L., & Knight, J. (1997). The new institutionalism. Part II. Law and Courts, 7(2), 4–9.

    Google Scholar 

  • Epstein, L., Landes, W. M., & Posner, R. A. (2013). The behavior of federal judges: A theoretical and empirical study of rational choice. Harvard University Press.

  • Epstein, R. A. (1990). Independence of judges: The uses and limitations of public choice theory. The Bringham Young University Law Review, 3, 827–850.

    Google Scholar 

  • Feld, L. P., & Voigt, S. (2003). Economic growth and judicial independence: Cross-country evidence using a new set of indicators. European Journal of Political Economy, 19(3), 497–527.

    Article  Google Scholar 

  • Fiorino, N., Padovano, F., & Sgarra, G. (2007). The determinants of judiciary independence: Evidence from the Italian Constitutional Court (1956–2002). Journal of Institutional and Theoretical Economics JITE, 163(4), 683–705.

    Article  Google Scholar 

  • Fon, V., & Parisi, F. (2006). Judicial precedents in civil law systems: A dynamic analysis. International Review of Law and Economics, 26(4), 519–535.

    Article  Google Scholar 

  • Garoupa, N., & Ginsburg, T. (2009). Judicial audiences and reputation: Perspectives from comparative law. Columbia Journal of Transnational Law, 47, 451–490.

    Google Scholar 

  • Garoupa, N., & Ginsburg, T. (2010). Reputation, information and the organization of the judiciary. Journal of Comparative Law, 4(2), 226–254.

    Google Scholar 

  • Garoupa, N., & Ginsburg, T. (2011a). Building reputation in constitutional courts: Political and judicial audiences. Arizona Journal of International & Comparative Law, 28(2), 539–568.

    Google Scholar 

  • Garoupa, N., & Ginsburg, T. (2011b). Hybrid judicial career structures: Reputation versus legal tradition. Journal of Legal Analysis, 3(2), 411–448.

    Article  Google Scholar 

  • Grajzl, P., Dimitrova-Grajzl, V., & Zajc, K. (2016). Inside post-socialist courts: The determinants of adjudicatory outcomes in Slovenian commercial disputes. European Journal of Law and Economics, 41(1), 85–115.

    Article  Google Scholar 

  • Heise, M. (2002). The past, present and future of empirical legal scholarship: Judicial decision making and the new empiricism. University Of Illinois Law Review, 4, 819–850.

    Google Scholar 

  • Higgins, R., & Rubin, P. (1980). Judicial discretion. The Journal of Legal Studies, 9(1), 129–138.

    Article  Google Scholar 

  • Ippoliti, R., Melcarne, A., & Ramello, G. B. (2015). Judicial efficiency and entrepreneurs’ expectations on the reliability of European legal systems. European Journal of Law and Economics, 40(1), 75–94.

    Article  Google Scholar 

  • Levy, G. (2005). Careerist judges and the appeals process. RAND Journal of Economics, 36(2), 275–297.

    Google Scholar 

  • Melcarne, A., & Ramello, G. B. (2015). Judicial independence, judges’ incentives and efficiency. Review of Law & Economics, 11(2), 149–169.

    Article  Google Scholar 

  • Padovano, F. (2009). The time-varying independence of Italian peak judicial institutions. Constitutional Political Economy, 20(3–4), 230–250.

    Article  Google Scholar 

  • Padovano, F., & Fiorino, N. (2012). Strategic delegation and “judicial couples” in the Italian Constitutional Court. International Review of Law and Economics, 32(2), 215–223.

    Article  Google Scholar 

  • Pederzoli, P. (2008). La corte costituzionale. Bologna: Casa Editrice Il Mulino.

    Google Scholar 

  • Pellegrina, L. D., & Garoupa, N. (2013). Choosing between the government and the regions: An empirical analysis of the Italian Constitutional Court decisions. European Journal of Political Research, 52(4), 558–580.

  • Posner, R. (1993). What do judges maximize? (The same thing everybody else does). Supreme Court Economic Review, 3(1993), 1–41.

    Article  Google Scholar 

  • Posner, R. (2005). Judicial behavior and performance: An economic approach. Florida State University Law Review, 32, 1259–1280.

    Google Scholar 

  • Ramseyer, J. M., & Rasmusen, E. B. (1997). Judicial independence in a civil law regime: The evidence from Japan. Journal of Law, Economics, and Organization, 13(2), 259–286.

    Article  Google Scholar 

  • Rubin, E. (1996). The new legal process, the synthesis of discourse, and the microanalysis of institutions. Harvar Law Review, 109(6), 1393–1438.

    Article  Google Scholar 

  • Ruggieri, A., & Spadaro, A. (2008). Lineamenti di giustizia costituzionale. Giappichelli Editore.

  • Schauer, F. (2000). Incentives, reputation, and the inglorious determinants of judicial behavior. University of Cincinnati Law Review, 68, 615–636.

    Google Scholar 

  • Schneider, M. R. (2005). Judicial career incentives and court performance: An empirical study of the German labour courts of appeal. European Journal of Law and Economics, 20(2), 127–144.

    Article  Google Scholar 

  • Shepherd, J. (2011). Measuring maximizing judges: Empirical legal studies, public choice theory, and judicial behavior. University of Illinois Law Review, 68(2007), 101–114.

    Google Scholar 

  • Taha, a E. (2004). Publish or Paris? Evidence of how judges allocate their time. American Law and Economics Review, 6(1), 1–27.

    Article  Google Scholar 

  • Voigt, S. (2016). Determinants of judicial efficiency: A survey. European Journal of Law and Economics, 42(2), 183–208.

    Article  Google Scholar 

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Authors and Affiliations

  1. EconomiX, CNRS and Université Paris Nanterre, Nanterre, France

    Alessandro Melcarne

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  1. Alessandro Melcarne
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Correspondence to Alessandro Melcarne.

Additional information

I would like to thank Theodore Eisenberg, Giovanni Ramello, Stefan Voigt, Chris Sanchirico, Fernando Gomez, Giuseppe Di Vita, Veronica Grembi, Matteo Migheli, Peter Grajzl, Barbara Luppi, Jerg Gutman and participants to seminars in Alessandria, Bologna, Erfurt, Montpellier, Roma, Groningen, Santander, Torino, Silvaplana and Nanterre for their useful comments. This paper was awarded with the 2014 “Brenno Galli” Prize for the best young promising scholar, granted by the Italian Law and Economics Society. Contact: alessandro.melcarne@parisnanterre.fr.

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Melcarne, A. Careerism and judicial behavior. Eur J Law Econ 44, 241–264 (2017). https://doi.org/10.1007/s10657-017-9565-4

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