California Law Review Volume 87|Issue 6 Article 5 December 1999 Sen and the Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior Neil S. Siegel Follow this and additional works at:https://scholarship.law.berkeley.edu/californialawreview Recommended Citation Neil S. Siegel,Sen and the Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior, 87 Calif. L. Rev. 1581 (1999). Link to publisher version (DOI) https://doi.org/10.15779/Z38D717 This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Sen and the Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior Neil S. Siegelt This Comment argues that economic analysisp rovides an inadequate account of judicial behavior because economic models are incompatible with a jurisprudence that recognizes basic rule-of-law values. Whereas standard economic theory is committed to thinking of a judge as exclu- sively self-interested, two fundamental problems with this conception exist. First,a s application of Amartya Sen's critique of the behavioralf ounda- tions of economic theory to judicial behavior reveals, the decision of a judge who meets her judicial obligations may fail to maximize her self- interest. Second, even if the self-interest-maximizing decision coincides with the behavior that her judicial obligations require, economic models still fail to provide an accurate explanation of judicial decision making. This inability is attributablet o economic theory's failure to recognize the distinguishingf eature ofjudicial behavior-whatH .LA. Hart compellingly describes as relatingt o a rulef rom the internalp oint of view. In Overcoming Law, Richard Posner anticipates this Comment's challenge to the economic analysis of judicial behavior, but significant problems exist with his attempt to meet it. Because Posner assumes away the problem of obligationa nd reduces judicial motivation to self-interest, his method neglects Hart's concern with the internala spect of obligatory Copyright © 1999 California Law Review, Inc. t J.D. Candidate 2001, School of Law, University of California, Berkeley (Boalt Hall); Ph.D. Candidate 2001, Jurisprudence & Social Policy Program, University of California, Berkeley; M.A. (Economics), Duke University, 1995; A.B. (Economics and Political Science), Duke University, 1994. I am indebted to Claire 0. Finkelstein for the extensive time she devoted to reading earlier drafts. Her criticism and suggestions vastly improved the paper. I also am grateful to Sanford H. Kadish for his incisive criticism of an earlier draft. Additionally, I want to thank the 1998-99 Notes & Comments Editors-Ellen LaPointe, Gillian N. Brown, Shawna Parks, and especially Kim Sayers-Fay-for their enthusiasm about student writing, their professionalism, and their editorial competence. Finally, I wish to thank Robert D. Cooter and Daniel L. Rubinfeld for teaching me law and economics. This Comment is dedicated to the memory of my cousin, Richie Beckelman, who would have been the first person to ask me for a copy, regardless of the topic. There never was a person more interested in ideas for their own sake. I miss him dearly. 1582 CALIFORNIA LAW REVIEW [Vol. 87:1581 social rules. It is thus incompatible at the theoretical level with the liberal ideal of the rule of law. Additionally, Posner's approach is anti-empiricalb y methodological necessity. Thus, his assertions notwithstanding, his theory of judicial behavior is no more empirically grounded than the liberalj urisprudence whose conception of the judge he derides. Nevertheless, this reality does not absolve adherentso f liberal legal philosophyf rom the responsibility of empirically testing their own understandingso f judicial behavior.R ather, researchersn eed to test empirically both Hart's and Posner's accounts of why judges follow institutionalr ules. In particular,i n addition to observ- ing judicial behavio, investigatorsn eed to persuade judges to introspect about and communicate their experiences of themselves and each other on the bench. INTRODUCTION Economists interpret legal sanctions as prices, thereby enabling them- selves to employ microeconomic theory' to provide a scientific, behavioral theory of law. This theory empowers the economist to predict how human behavior will respond to changes in legal rules.2 Because economics con- stitutes the first and indeed the only body of theory that allows the legal analyst to make such predictions with mathematical precision, economic analysis has had a profound impact on the law. In the words of two economists who are part of the generation that institutionalized the law and economics movement, "[e]conomics has changed the nature of legal scholarship, the common understanding of legal rules and institutions, and even the practice of law. '3 This influence notwithstanding, this Comment argues that the eco- nomic analysis of law provides an inadequate account of judicial behavior because economic models are incompatible with a jurisprudence that rec- ognizes basic rule-of-law values.4 In other words, such models have diffi- culty making sense of what it means for a judge to be faithful to her office. 1. Modem microeconomic theory encompasses both game theory and price theory. 2. See ROBERT COOTER & THOMAS ULEN, LAW AND EcONoMics 3 (3d ed. 2000). 3. Id. at2. 4. This Comment does not offer a general critique of the law and economics research program. On the contrary, it is my considered judgment that economic analysis helps to clarify the nature of many legal problems. In general, economics offers valuable and valid predictions of the incentive effects of legal rules in situations that do not significantly implicate the philosophical issues and sociological phenomena with which this Comment concerns itself. Examples include broad areas of (non-judicial) human behavior within the traditional private law categories of property, contract, and tort. Of course, scholars who are hostile to the economic analysis of law would likely argue that no such unproblematic situations exist. Refutation of this claim is beyond the scope of this inquiry; I merely note my disagreement with it. The assertion that economics can explain nothing of relevance to the law is as excessive and therefore invalid as the grandiose, imperialistic claim that economics can explain everything of relevance to the law. For critical discussion of this latter assertion, see infra note 104 and accompanying text. 1999] SEN AND THE HART OF JURISPRUDENCE 1583 Standard economic theory conceives of actual judicial behavior as rational behavior, and it generally defines rational behavior as maximiza- tion of a judge's self-interest.' This self-interest theory of rational choice requires that the decisions a judge renders correspond with her self- interest. This Comment argues that two fundamental problems with this approach exist. First, the decision a judge renders in a particular case may not maxi- mize her self-interest. This reality is evidenced by applying Amartya Sen's6 seminal critique of the behavioral foundations of economic theory7 to the problem of judicial behavior. Insofar as judicial decision making is legitimate, the connection economic theory requires between a judge's choice behavior (i.e., her decision in a case) and her self-interest8 may fail to exist. This may occur for either of two reasons. First, a judge's choice behavior may fail to reveal her preference.9 A judge who prefers decision x to decision y should and may nevertheless choose y in situations in which doing so is required by an obligation to follow precedent or accepted prin- ciples of statutory construction and constitutional interpretation. The judge may think decision x is "fairer," favors a more sympathetic party, or advances her political views, but she should and may nevertheless render decision y in order to meet her judicial obligations. Second, even if a judge's choice does reveal her preference, her self-interest may not be identifiable with satisfaction of that preference. For example, a judge may prefer to meet her judicial obligations, but she would enhance her self- interest by not meeting them. This identification of self-interest with pref- erence satisfaction will fail to obtain in situations in which the judge con- sciously makes welfare-reducing decisions, again out of respect for the doctrine of stare decisis or other principles of judicial interpretation. 5. See infra note 34 for a more precise articulation of this statement. 6. Amartya K. Sen is the winner of the 1998 Nobel Prize in Economics for his "several key contributions to the research on fundamental problems in welfare economics. His contributions range from axiomatic theory of social choice, over definitions of welfare and poverty indexes, to empirical studies of famine. They are tied closely together by a general interest in distributional issues and a particular interest in the most impoverished members of society" Press Releasei The 1998 Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel (visited Feb. 12, 1999) <http:llwww.nobgl.se/announcement-98/economy98.htmil>. In 1998, he left his professorships in economics and philosophy at Harvard University to become Master of Trinity College, Cambridge U.K. See id. 7. See AAMARTYA SEN, ON ETIncs AND ECONOMICS (1987) [hereinafter SEN, ON ETHiCS AND ECONOMICS]; Amartya Sen, Behaviour and the Concept of Preference, 40 ECONOMICA 241 (1973) [hereinafter Sen, Behaviour and the Concept of Preference]; Amartya Sen, Choice, Orderings and Morality, in PRACTIcAL REASON 54, 61 (Stephan Kdmer ed., 1974) [hereinafter Sen, Choice Orderings and Morality]; Amartya Sen, Rational Fools: A Critique of the Behavioral Foundationso f Economic Theory, 6 PHIL. & PuB. Air. 317 (1977) [hereinafter Sen, Rational Fools]. 8. This Comment uses the terms "self-interest" and "welfare" interchangeably. 9. By "preference," I mean whatever a judge favors doing for whatever reason, including following institutional rules. Of course, a judge need not prefer to follow these rules. 1584 CALIFORNIA LAW REVIEW [Vol. 87:1581 A second basic problem with the economic approach exists. Even if the decision that would reveal a judge's preference and maximize her wel- fare perfectly coincides with the behavior that her judicial obligations require in a particular case,'0 economic models still fail to provide an accu- rate explanation of judicial decision making. This inability is attributable to economic theory's failure to recognize the distinguishing feature of judi- cial behavior-what H.L.A. Hart compellingly describes as relating to a rule from the internalp oint of view." Insofar as a judge so relates to the rules of her trade, it is the institutional rules of judging-not the judge's preferences or self-interest-that provide the reason for her decision. 2 In Overcoming Law,'3 Richard Posner anticipates and attempts to meet this challenge to the economic analysis of judicial behavior by assuming away the problem of obligation and reducing judicial motivation to self-interest.14 This Comment demonstrates that Posner's method neglects Hart's concern with the internal aspect of obligatory social rules. Consequently, Posner's jurisprudence is incompatible at the theoretical level with the liberal ideal of the rule of law. Finally, this Comment argues that Posner' s approach is anti-empirical. This is a result of the methodological necessity imposed by the self-interest theory of practical rationality upon which he implicitly relies. This reality contradicts his "interest in the world of fact."'5 Thus, his assertions not- withstanding, Posner' s theory of judicial behavior is no more empirically grounded than the traditional, liberal jurisprudence whose conception of the judge he derides. Nevertheless, this disconnection does not absolve adherents of liberal legal philosophy from the responsibility of empirically testing their own understanding of judicial behavior. Rather, both Hart's and Posner's answers to the question of why judges follow the institutional rules of judging need to be tested empirically through social scientific inquiries that disclose the realities underlying judicial practices. In particular, in addition to observing judicial choice behavior, investigators need to persuade judges to introspect about and communicate their experiences of them- selves and each other on the bench. While this approach would undoubt- edly be dismissed as naive silliness by empirically-oriented economists, 6 10. Thus, Sen's critique does not apply to that judge in that instance. 11. See H.L.A. HART, THE CONCEPT OF LAW 56-57, 88-90, 115-16 (2d ed. 1994). For a discussion of the internal point of view, see infra notes 27-29and accompanying text. 12. See id. 13. RICHARD A. POSNER, OVERcOMING LAW (1995). 14. See id. at 109-44. 15. Id. at 109. 16. For example, in "the most influential work on economic methodology of this century," Milton Friedman responds to "criticism[] of the maximization-of-returns hypothesis on the grounds that businessmen do not and indeed cannot behave as the theory 'assumes' they do." Milton Friedman, The Methodology of Positive Economics, in THE PHILOSOPHY OF ECONOMICS:AN ANTHOLOGY 180, 199 1999] SEN AND THE HART OF JURISPRUDENCE 1585 introspection and communication nevertheless have an obvious and legiti- mate role to play in legal and social scientific inquiries that endeavor to understand whether and why judges follow institutional rules. Part I of this Comment articulates Hart's jurisprudential view of judi- cial behavior, focusing on his identification of the internal point of view and his development of the concept of obligation. Part II describes the eco- nomic view of judicial behavior compelled both by the theory of revealed preference and the economist's practice of identifying welfare with prefer- ence satisfaction. Part III draws from the work of Sen and Hart to articulate a philosophical critique of the economic analysis of judicial behavior. Part IV identifies the jurisprudential problems with Posner's attempt to meet this challenge. Finally, after showing that Posner's approach is anti- empirical by methodological necessity, Part V addresses the relevance of empirical evidence to this theoretical debate. I HART'S JURISPRUDENTIAL VIEW OF JUDIcIAL BEHAVIOR The practice of adjudication imposes an obligation on judges to respect certain constraints on the determinants of their decisions. These constraints manifest themselves as the institutional rules of judging required by the doctrine of stare decisis, as well as accepted principles of statutory construction and constitutional interpretation. While the bounda- ries they prescribe are often unclear or even indeterminate, and while they are more or less precise depending on the area of law at issue, judges nev- ertheless cannot choose simply to ignore relevant precedents when they deliberate over a case before them; nor can they decide to interpret a stat- ute or the Constitution in. any way they see fit. To be a judge is not to be a legislator with life tenure; judges, unlike legislators, cannot choose simply to enshrine their preferences in the law. This point is conceptual rather than empirical: It is not that judges cannot or do not ever allow their own preferences to determine their deci- sions, but rather that judges who do so are not engaged in the practice of adjudication because their behavior is illegitimate.7 The question of (Daniel M. Hausman ed., 2d ed. 1994). He writes, "The evidence cited to support this assertion is generally taken either from the answers given by businessmen to questions about the factors affecting their decisions-a proceduref or testing economic theories that is about on a par with testing theories of longevity by asking octogenariansh ow they accountf or their long life-or from descriptive studies of the decision-making activities of individual firms. Little if any evidence is ever cited on the conformity of businessmen's actual market behavior-what they do rather than what they say they do-with the implications of the hypothesis being criticized, on the one hand, and an alternative hypothesis, on the other." Id. (emphasis added). 17. To be more precise, a judge's behavior is illegitimate insofar as she allows her own preferences to determine her decisions and those preferences do not consist in following the institutional rules at issue. A judge whose decision-determining preferences consist in following the rules of her trade is not behaving illegitimately when she makes choices that reveal her preference for 1586 CALIFORNIA LAW REVIEW [Vol. 87:1581 judicial legitimacy is particularly acute in a democracy such as the United States in which federal judges enjoy life tenure and are appointed rather than elected. 8 These observations are elementary, and yet fundamental to both the jurisprudential and lay understanding of what it means to be a judge. Thus, it is hardly surprising that the work "universally regarded as the most significant contribution to legal philosophy of this century,"'9 H.L.A. Hart's The Concept of Law,20 incorporates them as basic rule-of- law values. Hart argues that a minimum condition necessary for the existence of a legal system consists in its rules of adjudication2' being "effectively accepted as common public standards of official behaviour by its officials."22 Officials must "appraise critically their own and each other's deviations as lapses."23 Applying an accepted rule of law involves a thought on the part of a judge that what he does is the right thing both for himself and for others to do: he [has a] view of what he does as a fulfilment of a standard of behaviour for others of the social group. He [thinks] of his conforming behaviour as "right," "correct," or "obligatory." His attitude, in other words, [has] that critical character which is involved whenever social rules are accepted and types of conduct are treated as general standards. He [shares] the internal point of view accepting the rules as standards for all to whom they apply.' According to Hart, judges in any legal system must possess this reflective critical attitude.2 Otherwise, the unity and continuity that any legal system logically must possess would disappear. Arbitrary and contradictory judi- cial decisions would result in social chaos.26 The judicial thought process described above consists of two ele- ments, namely (1) the internal point of view associated with social rules (also called standards of behavior), and (2) the phenomenon of obligation. Hart's treatment of both concepts warrants close consideration. following the rules insofar as the rules--and not her preferences--are what determine her decision. See infra notes 73-76 and accompanying text. 18. See U.S. CONsr. art. I, § 1, cl.2. 19. JEFFRIE G. MURPHY & JULES L. COLEMAN, THE PHILOSOPHY OF LAW:AN INTRODUCTION TO JURISPRUDENCE 31 (1984). 20. HART, supra note 11. 21. Hart identifies rules of adjudication as those secondary rules that "confer judicial powers and a special status on judicial declarations," determining whether or not primary rules have been broken. Id. at 97. Such rules specify the individuals who are to adjudicate as well as "define the procedure to be followed." Id. 22. Id. at 116. 23. Id. at 117. 24. Id. at 115. 25. See id.at 57. 26. See id. at 116. 1999] SEN AND THE HART OF JURISPRUDENCE 1587 Hart distinguishes a social rule from a general habit that exists among members of a social group partly in terms of the internal aspect of the for- mer: if a social rule is to exist some at least must look upon the behaviour in question as a general standard to be followed by the group as a whole. A social rule has an 'internal' aspect, in addition to the external aspect which it shares with a social habit and which consists in the regular uniform behaviour which an observer could record.27 A certain (minimum) number of people subject to a social rule regard it as a standard of behavior for all who conform to it.28 They conceive the rule as not only a sign that certain people will behave in a particular way, but also as a signal and a reason for them to behave that way.29 They accept this internal aspect of rules from the internal point of view. The statement that a person is under an obligation presupposes the existence of a rule. Not all rules, however, give rise to obligations; rather, rules impose obligations "when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great."30 More specifically, Hart identifies three fac- tors that distinguish rules of obligation or duty from other rules: (1) "the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations"; (2) "[t]he rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it"; and (3) "the conduct required by these rules may, while benefiting others, conffict with what the person who owes the duty may wish to do. Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation, and the standing possibility of conflict between obligation or duty and interest is, in all societies, among the truisms of both the lawyer and the moralist."'" Concerning the third factor, Hart notes that in "[t]he figure of a bond binding the person obligated, which is buried in the word 'obligation' ... the social pressure appears as a chain binding those who have obligations so that they are not free to do what they want. 32 Judges 27. Id. at 56. 28. See id. 29. See id. at 89-90. 30. Id. at 86. 31. Id. at 87. 32. Id. (emphasis removed). 1588 CALIFORNIA LAW REVIEW [Vol. 87:1581 "are not free to do what they want" when they render decisions because they are subject to institutional rules of judging that make following stare decisis and the accepted principles of statutory construction and constitu- tional interpretation a standard of behavior and an obligation.3 II THE ECONOMIC VIEW OF JUDICIAL BEHAVIOR Modern economic theory conceives of actual judicial behavior as rational behavior, which it defines as maximization of a judge's self- interest.4 This self-interest theory of rational choice is premised on two 33. My exclusive focus on Hart's theory of adjudication in this Comment should not obscure the fact that most jurisprudential treatments of judicial behavior are similar in their insistence that judges decide cases on the basis of internalized obligations. For example, although Ronald Dworkin's theory of law as integrity conflicts sharply with Hart's in several respects, they agree that the practice of adjudication requires judges to regard themselves as obligated to respect certain constraints on the determinants of their decisions. See RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE]. According to Dworkin, [jiudges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community. They try to make that complex structure and record the best these can be. Id. at 255. Dworkin emphasizes that not just any judicial interpretation of the political structure and legal doctrine of a judge's community can count as the best constructive interpretation; rather, the judge's interpretive theory will contain the dimension offit, his convictions about which will provide a rough threshold requirement that an interpretation of some part of the law must meet if it is to be eligible at all.... That thresholdw ill eliminate interpretationst hat some judges would othenvise prefer, so the brute facts of legal history will in this way limit the role any judge's personal convictions ofj ustice can play in his decisions. Id. (emphasis added). Not only do a judge's convictions about fit determine whether a given interpretation counts as an eligible interpretation; additionally, the issue of fit helps the judge to distinguish among eligible interpretations, for "even when an interpretation survives the threshold requirement, any infelicities of fit will count against it... in the general balance of political virtues." Id. at 256. While different judges will set this threshold differently, a judge who conceives law as integrity must accept that the actual political history of his community will sometimes check his other political convictions in his overall interpretive judgment. If he does not-if his threshold of fit is wholly derivative from and adjustable to his convictions of justice, so that the latter automatically provide an eligible interpretation-then he cannot claim in good faith to be interpreting his legal practice at all. Id. at 255. In other words, the judge whose interpretive theory lacks the dimension of fit is not subject to constraints she is obligated not to violate when she renders decisions. Such a judge is not engaged in the practice of adjudication. Indeed, it is because Dworkin's concept of law ties law tc adjudication-to the present justification of coercive force-that the content of law is "sensitive to different kinds of institutional constraints, special to judges, that are not necessarily constraints for other officials or institutions." Id. at 401. Among the constraints Dworkin discusses, two are of the familiar doctrinal sort, namely strict precedent (i.e., stare decisis) and legislative supremacy (which informs the practice of statutory interpretation). See id. 34. To be more precise, there are two predominant ways in which standard economic theory characterizes rational behavior. The first is to see rationality as internalc onsistency of choice. See SEN, ON ETHics AND ECONOMICS, supra note 7, at 12-15. This is the conception of rationality embodied in what philosophers call the instrumentaltheory of practical rationality. See DEREK PARFIT, REASONS 1999] SEN AND THE HART OF JURISPRUDENCE 1589 claims, one regarding the relationship between a judge's choice behavior (i.e., the decisions she renders) and her preferences over outcomes, 35 and the other regarding the connection between her preferences and her wel- fare. In particular, the theory requires that (1) a judge's choice behavior reveal her preference in every decision she renders, and that (2) her wel- fare be identified with satisfaction of that preference. A. Revealed Preference Theory The axioms of revealed preference theory in part compel the eco- nomic view of judicial behavior. In 1938, future Nobel laureate Paul Samuelson published his fundamental contribution to the approach.36 "[T]he individual guinea-pig," Samuelson would later write, "by his market behaviour, reveals his preference pattern-if there is such a consistent pattern."37 As Samuelson's portrayal of the human consumer as a "guinea-pig" is meant to suggest, revealed preference theory is grounded in the psychological model of behaviorism: It presumes that the only way in which to understand human beings is by inferring their preferences from their non-verbal choice behavior. The author of a standard microeconomics text writes that "in real life, preferences are not directly observable: we have to discover people's preferences from observing their behavior., 38 Assuming a judge's preferences remain stable over the time period during which she renders a decision, economists use the revealed prefer- ence approach to analyze her behavior as follows. 39 Let x and y represent two distinct judicial decisions of a case. If the judge renders decision x instead of y, economists would say that x is directly revealed preferred to y, which means that x is chosen over y. Assuming the judge is optimiz- ing, or choosing the decision she most prefers, the theory of revealed AND PERSONS 117 (1984). The instrumental theory conceives of a rational agent as a utility maximizer, where utility is nothing but a reflection of preference, whether self- or other-regarding. The second way in which modem economic theory characterizes rational behavior is to identify rationality with maximization of one's self-interest (or personal welfare). See SEN, ON ETiCs AND EcoNoMIcS, supran ote 7, at 15-22. Philosophers call this approach the self-interest theory of practical rationality. See PARFrr, supra, at 3. This Comment focuses exclusively on the self-interest theory because, as will become evident from the discussion of Kornhauser, see infra notes 44-47 and accompanying text, it is this theory that economists typically employ in their analyses of judicial behavior. The major philosophical difference between the two theories is that only the self-interest theory needs to be supplemented by a theory of human welfare. For further discussion of this issue, see infra notes 41-42 and accompanying text. 35. By ' preference," I mean whatever a judge favors doing, whether it be following precedent, advancing her material self-interest, or furthering a political or ideological agenda. 36. See Paul A. Samuelson, A Note on the Pure Theory of Consumer's Behaviour,5 ECONOMICA 61 (1938); Paul A. Samuelson, A Note on the PureT heory of Consumer'sB ehaviour: An Addendum, 5 EcONOMICA 353 (1938). 37. Paul A. Samuelson, Consumption Theory in Terms of Revealed Preference, 15 ECONOMICA 243,243 (1948). 38. HALR. VA iAN, INTERMEDIATE MIcROEcONOMICS 117 (4th ed. 1996). 39. The following paragraph draws from VAltiAN, see id.a t 117-21.