The Supreme Court decision that by mifei


									                                                  Scholarly Article: Judges as Altruistic Hierarchs

          Judges as Altruistic Hierarchs:
          The Modern Judiciary Rests on the Expectation that Judges
                   will Behave in an Altruistic Fashion

                                                            by Professor Lynn Stout
                                2001 George P. Wythe Lecture at the William & Mary School of Law
                                      Abridged feature by Alumni Advisor Louise Lillard ’85

     In the broader realm of the social           may also use their power to impose             ing to the social context. How people
     sciences, altruism is both common            their personal preferences on the broader      behave is affected by such factors as
                                                  society. Yet most judges perceive an           how the experimenter asks them to
     and predictable. People regularly
                                                  obligation or responsibility to do a           behave, how they expect other members
     keep promises, leave tips, and
                                                  good job. Judges often feel they ought         of the group to behave, and how much
     decline to take advantage of                 to “do the right thing” by deciding            they identify with other members of
     other people’s mistakes, even in             cases fairly, impartially, and correctly.      the group. If others in our group are
     commercial transactions. Most                     To understand fully the modern            behaving nicely we are much more
     people do not mug other people;              judicial motivation and behavior, we           likely to behave nicely ourselves. We
                                                  must believe that judges do not always         do not behave the same at a wedding
12   not solely out of fear of punishment
                                                  act completely out of self-interest.           reception as we do when we are
     but also out of a desire not to
                                                  Rational choice usually presumes that          negotiating to buy a car.
     hurt or frighten others.                     people will act to improve their own                Economic factors are also signifi-
                                                  interests. But this rational choice analysis   cant. People behave altruistically and
                                                  when applied to judges omits the               will be honest and fair and generous

             he Supreme Court decision that       important element of altruism. We              only if it doesn’t cost them too much.
             determined the outcome of the        expect judges to do the right thing, to        They are also more inclined to be
             2000 presidential election (Bush     behave in an altruistic manner even            cooperative if their acts result in great
     v. Gore, 121 S.Ct.525 (2000)) illustrated,   though they may feel otherwise. We             benefit to others. Cooperation in social
     among other things, that judges are          expect them to act as though they              dilemmas appears to be negatively
     truly hierarchs, that they possess           care less about their own personal             correlated with the cost of cooperation
     remarkable powers over the fate of oth-      preferences and more about what                to the cooperating players and posi-
     ers, and that often they have been           could be described in various ways:            tively correlated with the benefits of
     selected by the very people whose            moral principles, commitment to                such cooperation to others. Altruism is
     fortunes they decide. Such hierarchs         public service, legal                                         most likely to be
     are expected to avoid abuse of this          craftsmanship, or even                                        observed when the cost
     great power by fairly and impartially        noblesse oblige.                     “Rational choice         of cooperation to one-
     applying the law independent of any               Social scientists who           usually presumes         self is relatively small
     personal considerations or convictions.      study human behavior              that people will act        and the benefit to others
     This case reminded many that this            through “social dilemma”                                      is    relatively    large.
                                                                                       to improve their
     concept, this ideal, remains just that: an   experiments, have found                                       Nevertheless, even small
                                                                                     own interests. But
     ideal, which may or may not be realized      that most people (not                                         acts of altruism can, in
     in judicial decisions.                       always, but frequently)           this rational choice        the aggregate, produce
          Judges have no external incentive       cooperate and demon-              analysis when applied       considerable social gains.
     to perform ideally or even to do a good      strate concern for the             to judges omits the
     job. They are not punished for bad           welfare of others, even                                            We need to incor-
                                                                                      important element
     decisions nor rewarded for good ones.        to their own detriment.                                       porate the phenomenon
     Judges may base their decisions on a         However, such altruistic               of altruism.”          of socially contingent
     neutral application of the law, but they     behavior varies accord-                                       altruism into our analysis

                                                                UCLA LAW FALL 2002
                                               Scholarly Article: Judges as Altruistic Hierarchs

                                              “An important corollary is that the
                                            smaller the role altruism seems to play
                                                in determining judicial behavior,
                                        the less acceptance and social legitimacy
                                                the judiciary is likely to enjoy.”

of judicial behavior. Understanding the        salaries encourage altruism because                 suggest that judges act in self-interest,
determinants of altruistic behavior            they discourage those who are selfish               this sends a message as to what is
may be the key to how we can motivate          or greedy from ever seeking judicial                expected and commonplace behavior
judges and encourage good judging.             appointments). Social dilemma evidence              on the bench and raises the possibility
Judges are forbidden to accept bribes          further suggests that judges will do a              that this may become a self-fulfilling
or from deciding cases in which they           better job if they share social                     prophecy. Legal scholars may therefore
have a direct interest. They are discour-      identity with the litigants who appear              change judicial behavior by the obser-
aged from moonlighting so that they            in front of them. Perhaps the black                 vations they make about this behavior.
can direct their entire attention to           robes and the imposing raised bench                 I admit I do not lose much sleep over
judging rather than to some more               widen the distance between judges and               this possibility. My own suspicion is
lucrative enterprise. Judges are usually       the general citizenry. (On the other                that academic theorizing has remark-
seasoned practitioners or legal scholars       hand, such customs serve the valuable               ably little effect on what non-academics,
rather than laymen who might need to           function of reminding the judge of the              including judges, do. Yet there is a
expend a great deal of effort to do a          gravity and importance of her role.)                second risk scholars run if they insist
correspondingly good job of deciding                Another essential guideline result-            on always analyzing judicial behavior
the law. These obvious precautions             ing from the social dilemma experiments             through the lens of rational choice. If
reduce the likelihood that judges will         is that judges must believe that other              scholars insist on analyzing legal
decide cases badly (erroneously, care-         judges in other courts are deciding                 behavior solely through the lens of
lessly), but we need to go beyond that         cases carefully and impartially. Thus               rational choice without adding the
to create incentives for judges to decide      tremendous damage can be done by                    important ingredient of altruism, they
cases well.                                    highly publicized opinions such as                  risk failure in understanding the
     Social dilemma experiments suggest        Bush v. Gore, where the justices of the             nature of judicial behavior and the
that altruism can provide such an              Supreme Court were widely perceived                 judicial role. If we persist in treating
incentive. But this will occur only            to have behaved in a biased, partisan               judges and other hierarchs as if they
when social and economic circum-               fashion. Such decisions undermine not               are purely selfish beings we are
stances favor altruism. This means that        only the public faith in the Supreme                neglecting the other more important
if we want judges to do a good job we          Court but they also damage the func-                side of the story, the altruistic side.
must encourage them to believe that            tioning of the judiciary as a whole.
their decisions are important to others.       Other judges may infer that if the
One gauge of this importance is the            Supreme Court does not behave
salary they are paid. In contemporary          impartially it is not important for them
American culture salary is often               to do so.
viewed as evidence of merit and value.              Finally, the legal academy, that is,
Thus it is a matter of public concern          law professors who express opinions
when federal judges receive lower              about the quality of judging in scholarly                Lynn Stout joined the UCLA Law
salaries than their law clerks will earn       works and in comments to the media                  faculty in 2001. Special thanks to Louise
when they begin work as associates in          may be the authority whose opinion is               Lillard ‘85 who provided this abridged
law firms. (Contrary to this reasoning,        respected enough to encourage judges                feature of Professor Stout’s essay, Judges as
one could argue that low judicial              to do their best. Therefore when scholars           Altruistic Hierarchs.

                                                             UCLA LAW FALL 2002

                      Externships for Students
                         in Judges’ Chambers
     By Kristen Holmquist ‘96

             very semester, the School of Law                                                    While in school students learn
             sends a handful of students to          “At its best, the externship            four or five subjects in depth per
             extern in judges’ chambers              offers a number of special              semester. Externs may face as many
     around Southern California. The extern           opportunities: to see how              issues daily. Only while in chambers
     acts as a mini-clerk — that is, as a legal      judicial decisions are made             are our students faced with the minutiae
     assistant to the judge for whom he or              and to understand the                of antitrust, contract law, mandatory
     she works. Because the relationship            pressures and considerations             minimum sentences, water rights,
     between judge and clerk or extern is                that influence those                bankruptcy, torts, and more, all during
     individual, the nature of the work              decisions; to participate in            the course of a week. And while they

14   varies widely from judge to judge;            the shaping of those decisions            are learning the substantive law in
     indeed, the same judge may have                through both legal analysis              these areas, they are writing, writing,
     different relationships with successive        and individual viewpoint; and            writing. With feedback from the judges
     students, depending on the abilities of           to get to know someone                and clerks for whom they work,
     judge and student to work together. In            in a critical position of             judicial externs improve their legal
     general, however, externs assist judges                 social power.”                  research and writing skills immeasurably
     and their clerks by doing legal research                                                over the course of the semester.
     and drafting memoranda and opinions.         and individual viewpoint; and to get to        A number of the Law School’s
     In the course of a single day, the           know someone in a critical position of     judicial   externs   have   maintained
     student may find him or herself culling      social power.                              rewarding professional relationships
     salient facts from a massive record,             Judicial externs rave about their      with the judges for whom they
     writing a memorandum to the court on         semester in chambers. Almost to a          worked. Some have gone on to clerk
     the legal issues in a case, and serving as   person, they say it was their favorite     for the same judge post graduation.
     a sounding board for thoughts on a           semester of law school. While cynics       Many say that the judge proved an
     proposed decision. In short, judicial        might assume that the students were        invaluable teacher during their semester
     externs are treated and given responsi-      simply thrilled to have avoided the        working together. This mentor relation-
     bilities much the same as law clerks.        Socratic method and exams for a term,      ship can, of course, be one of the most
         At its best, the externship offers a     former externs would gladly disabuse       important of a young lawyer’s career.
     number of special opportunities: to see      those cynics of that belief. For most of   In the end, the externship semester
     how judicial decisions are made and to       them, two aspects of the semester espe-    reminds students that learning about
     understand the pressures and consid-         cially stand out: the opportunity to       the law does not end when they walk
     erations that influence those decisions;     learn in a “real world” setting; and the   outside the law school’s doors.
     to participate in the shaping of those       heady experience of getting to know
     decisions through both legal analysis        and help a judge do the courts’ work.

                                                             UCLA LAW FALL 2002

                                 Fa c u l t y w h o h a v e C l e r k e d
Khaled Abou El Fadl                                Robert Goldstein                                Sandy Roth
Justice James Moeller                              Chief Judge Raymond Pettine                     Judge Procter Hug, Jr.
Arizona Supreme Court                              U.S. District Court, District of Rhode Island   U.S. Court of Appeals, 9th Circuit

Iman Anabtawi                                      Laura Gómez                                     Gary Rowe
Judge Laurence H. Silberman                        Judge Dorothy Nelson                            Judge William Norris
U.S. Court of Appeals, D.C. Circuit                U.S. Court of Appeals, 9th Circuit              U.S. Court of Appeals, 9th Circuit

Justice Sandra Day O’Connor
                                                   Joel Handler                                    William Rubenstein
U.S. Supreme Court
                                                   Justice Nathan Jacobs                           Judge Stanley Sporkin
                                                   New Jersey Supreme Court                        U.S. District Court, District of Columbia
Alison Anderson
Judge Simon Sobeloff
                                                   Tom Holm                                        Richard Sander
U.S. Court of Appeals, 4th Circuit
                                                   Judge Arthur L. Alarcón                         Judge John Grady
                                                   U.S. Court of Appeals, 9th Circuit              U.S. District Court, Northern District
Peter Arenella
                                                                                                   of Illinois
Chief Justice Tauro
                                                   Kristen Holmquist
Massachusetts Supreme Judicial Court
                                                   Judge Robert Boochever                          Brad Sears
                                                   U.S. Court of Appeals, 9th Circuit              Judge J. Spencer Letts
Stephen Bainbridge
                                                                                                   U.S. District Court, Central District
Chief Judge Frank A. Kaufman
                                                   Lily Hsu                                        of California
U.S. District Court for the District of Maryland
                                                   Judge Warren J. Ferguson
                                                   U.S. Court of Appeals, 9th Circuit              David Sklansky
Paul Bergman
                                                                                                   Judge Abner Mikva
Judge O.D. Hamlin                                  Judge Mariana Pfaelzer
                                                                                                   U.S. Court of Appeals, D.C. Circuit
U.S. Court of Appeals, 9th Circuit                 U.S. District Court, Central District of
                                                   California                                      Justice Harry A. Blackmun
Grace Blumberg                                                                                     U.S. Supreme Court                          15
Appellate Division,                                Jerry Kang
Superior Court of New York, 4th Department         Judge William Norris                            Lynn Stout
                                                   U.S. Court of Appeals, 9th Circuit              Judge Gerhard A. Gesell
Dan Bussel                                                                                         U.S. District Court, District of Columbia
Judge Stephen G. Breyer                            William Klein
U.S. Court of Appeals, 1st Circuit                 Judge David L. Bazelon                          Jonathan Varat
                                                   U.S. Court of Appeals, D.C. Circuit             Judge Walter Mansfield
Justice Sandra Day O’Connor
                                                                                                   U.S. Court of Appeals, 2nd Circuit
U.S. Supreme Court
                                                   Russell Korobkin
                                                                                                   Justice Byron White
                                                   Judge James L. Buckley
Kimberlé Crenshaw                                                                                  U.S. Supreme Court
                                                   U.S. Court of Appeals, D.C. Circuit
Justice Shirley Abrahamson
Wisconsin Supreme Court                                                                            Eugene Volokh
                                                   Gillian Lester
                                                                                                   Judge Alex Kozinski
                                                   Supreme Court of Ontario, Canada
David Dolinko                                                                                      U.S. Court of Appeals, 9th Circuit
                                                   Court of Appeals
Judge Harry Pregerson
                                                                                                   Justice Sandra Day O’Connor
U.S. Court of Appeals, 9th Circuit
                                                   Christine Littleton                             U.S. Supreme Court
                                                   Judge Warren Ferguson
Sharon Dolovich
                                                   U.S. Court of Appeals, 9th Circuit              John Wiley
Judge Rosemary Barkett
                                                                                                   Judge Frank M. Coffin
U.S. Court of Appeals, 11th Circuit
                                                   Timothy Malloy                                  U.S. Court of Appeals, 1st Circuit
                                                   Judge Donald W. VanArtsdalen
Jody Freeman                                                                                       Justice Lewis F. Powell, Jr.
                                                   U.S. District Court, Eastern District
Associate Chief Justice Morden                                                                     U.S. Supreme Court
                                                   of Pennsylvania
Justices Tarnopolsky, Arbour & Blair
Ontario Court of Appeal, Toronto, Ontario,                                                         Stephen Yeazell
                                                   Frances Olsen
Canada                                                                                             Justice Mathew Tobriner
                                                   Chief Judge Alfred A. Arraj
                                                   U.S. District Court, District of Colorado       California Supreme Court
Sue Gillig
Judge Dorothy W. Nelson                                                                            Jonathan Zasloff
                                                   Arthur Rosett
U.S. Court of Appeals, 9th Circuit                                                                 Judge Michael Boudin
                                                   Justice Harold H. Burton
                                                   Justice Stanley Reed                            U.S. Court of Appeals, 1st Circuit
Carole Goldberg
                                                   Chief Justice Earl Warren
Judge Robert Peckham
                                                   U.S. Supreme Court
U.S. District Court, Northern District of

                                                                 UCLA LAW FALL 2002

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