Judges as Altruistic Hierarchs

Abstract

Many formal discussions of judicial behavior employ a rational choice framework that presumes that judges are rational actors concerned only with improving their own welfare. This essay, prepared as the 2001 George P. Wythe Lecture at the William & Mary School of Law, suggests it may be both inappropriate and misleading to focus exclusively on self-interest as a judicial motivation. The social institution of the judiciary is premised on the expectation of a certain amount of judicial "altruism," in the form of a willingness to devote significant effort to deciding cases impartially and according to law even when external punishments and rewards are largely absent. This expectation rests on a solid empirical foundation: social scientists have compiled extensive evidence demonstrating that other-regarding behavior, including altruistic behavior, is both a common and a predictable phenomenon. As a result there may be much to be gained from formally incorporating the reality of other-regarding behavior into our accounts of the judiciary. As a first step in that direction, the essay reviews some of the voluminous evidence that has been compiled on when and why people display altruistic behavior in experimental games. It explores some implications for how we might better encourage judges largely insulated from external pressures to nevertheless decide cases carefully, impartially, and well.