Comparative judicial discretion: An empirical test of economic models

International Review of Law and Economics

Volumn 16, Issue 3, 1996, Pages 295-313

  Cooter, Robert D ^a   Ginsburg, Tom ^a  

^a NONE

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EID: 0030240743     PISSN: 01448188     EISSN: None     Source Type: Journal    
DOI: 10.1016/0144-8188(96)00018-X     Document Type: Article

References (71)

1. 1. See, e.g., M. Capelletti, 1989, The Judicial Process in Comparative Perspective, Oxford: Clarendon. For a theoretical account by the Chief Justice of Israel, see Aharon Barak, 1989, Judicial Discretion, Cambridge, MA: Harvard University Press.
2. 1. See, e.g., M. Capelletti, 1989, The Judicial Process in Comparative Perspective, Oxford: Clarendon. For a theoretical account by the Chief Justice of Israel, see Aharon Barak, 1989, Judicial Discretion, Cambridge, MA: Harvard University Press.
3. 2. In the common law tradition, judges may have a legitimate role in the creation of norms. This is less true in the continental or civil law tradition, where judges are urged to apply legislatively created norms.
4. 3. A key variable here is whether the judiciary is organized along the lines of a hierarchical civil service model, in which judges enter the profession at a relatively young age and advance through adherence to internally maintained professional norms. In the common law tradition, entry to the judiciary is a prestigious appointment that comes at the end of a distinguished legal career. Advancement is less of a concern, and the upper echelons of the profession have fewer collateral means of controlling the incentives of lower-court judges (though they do maintain control over legal norms through the appeals process).
5. 4. See, e.g., Kenneth Holland, Ed. 1991, Judicial Activism in Comparative Perspective, New York: St. Martin's.
6. 5. The model is developed in Gely and Spiller, "A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases," 6 Journal of Law, Economics and Organization 263 (1990). For a discussion of the U.S. Congress correcting judicial interpretation of civil rights legislation, see Abner Mikva and Jeffrey Bleich, "When Congress Overrules the Court," 79 California Law Review 729 (1991).
7. 5. The model is developed in Gely and Spiller, "A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases," 6 Journal of Law, Economics and Organization 263 (1990). For a discussion of the U.S. Congress correcting judicial interpretation of civil rights legislation, see Abner Mikva and Jeffrey Bleich, "When Congress Overrules the Court," 79 California Law Review 729 (1991).
8. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
9. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
10. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
11. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
12. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
13. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
14. 6. Our research draws upon similar models developed for the United States in J. Ferejohn and B. Weingast, "A Positive Theory of Statutory Interpretation," 12 International Review of Law and Economics, 263-279 (1992); J. Ferejohn and B. Weingast, "Limitation of Statues: Strategic Statutory Interpretation," 80 Georgetown Law Journal 565-582 (1992); and W. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," 101 Yale Law Journal 331 (1991). For the same model with an administrative agency, see B. Weingast and M. Moran, "Bureaucrats vs. Voters: On the Political Economy of Resource Allocation," 93 Quarterly Journal of Economics 143 (1979); J. Ferejohn and C. Shipan, "Congressional Influence on Bureaucracy," 6 Journal of Law, Economics, and Organization, 1-20 (1990); M. Spitzer, "Extensions of Ferejohn and Shipan's Model of Administrative Agency Behavior," 6 Journal of Law, Economics and Organization. 29-43 (1990); S. Rose-Ackerman, "Comment on Ferejohn and Shipan's 'Congressional Influence on Bureaucracy,' "6 Journal of Law, Economics, and Organization, 21-27 (1990).
15. 7. For an empirical study of American court decisions based on the model, see Spiller and Gely, "Congressional Control of Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988," 23 Rand Journal of Economics 463 (1992). The framework is developed in Gely and Spiller, supra note 5.
16. 8. Note that it could also mean that courts have less information about stable legislative preferences, which may lead the court to be cautious for fear of overreaching. Alternatively, courts may under-estimate legislative concern, in which case their innovation could provoke legislative correction because of the uncertainty of legislative preferences. Current demands for tort reform in the United States may reflect such dissatisfaction with judicial innovation.
17. 9. The structure of the party system itself is heavily influenced by electoral laws. For an empirical study, see R. Taagepera and M. Shugart, 1989, Seats and Votes: The Effects and Determinants of Electoral Systems, New Haven, CT: Yale University Press. Also see B. Grofman and A. Lijphardt, 1986, Electoral Laws and Their Political Consequences Edison, NJ: Agathon.
18. 9. The structure of the party system itself is heavily influenced by electoral laws. For an empirical study, see R. Taagepera and M. Shugart, 1989, Seats and Votes: The Effects and Determinants of Electoral Systems, New Haven, CT: Yale University Press. Also see B. Grofman and A. Lijphardt, 1986, Electoral Laws and Their Political Consequences Edison, NJ: Agathon.
19. 10. This is the case whether proposals for new legislation originate in the government or the legislature.
20. 11. Note that in both Japan and England there is an upper house of parliament, but its assent is only required for the budget and not for most ordinary legislation. Israel recently modified its Basic Law so that beginning in 1996 the Prime Minister will be directly elected rather than simply the head of the leading party in the parliamentary coalition. This has increased the number of legislative vetoes to two.
21. 12. Technically the Bundesrat is not an upper house but a distinct institution. However, it can impose an absolute veto on any legislation affecting the lander. See Arthur Gunlicks, "German Federalism After Unification: the Legal/Constitutional Response," 24 Publius 81, 84 (1994). Since such legislation constitutes well over 50% of the total, we treat the German system as bicameral. Although the Chancellor and President must also sign legislation, the President's signature is ceremonial and the Chancellor's veto is not exercised independently of the parliamentary majority.
22. 13. The French system is formally bicameral, but in fact the Senate is indirectly elected and can only delay lower house legislation and not block it. While this has the effect of imposing additional transaction costs and thereby increasing legislative resistance, for simplicity such partial vetoes are not counted in our model.
23. 14. Nelson Polsby characterizes these kind of legislatures as arenas, in contrast with transformative legislatures, which regularly modify the legislation in substantial ways. See Polsby, 1975, "Legislatures," in F. Greenstein and N. Polsby, Eds., Encyclopedia of Political Science, Vol. 1, Redding, MA: Addison Wesley.
24. 15. For purposes of this paper, changes in composition occur only when a party is added or dropped from the coalition, and not when the cabinet seats are merely reshuffled among existing coalition members. Nor is there a change when the same coalition continues in power after new elections.
25. 16. Gary Jacobson, 1990, The Electoral Origins of Divided Government, Boulder, CO: Westview.
26. 17. See discussion in R. Cooter and T. Ulen, 1988, Law and Economics, Glenview, IL: Scott Foresman, 421-462; and S. Shavell, 1987, Economic Analysis of Accident Law, Cambridge, MA: Harvard University Press. George Priest argues that the use of tort rather than contract doctrine in products liability cases is inefficient, Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law," 14 Journal of Legal Studies 461 (1985). W. Landes and R. Posner take a slightly different view in "A Positive Economic Analysis of Products Liability," 14 Journal of Legal Studies 529 (1985).
27. 17. See discussion in R. Cooter and T. Ulen, 1988, Law and Economics, Glenview, IL: Scott Foresman, 421-462; and S. Shavell, 1987, Economic Analysis of Accident Law, Cambridge, MA: Harvard University Press. George Priest argues that the use of tort rather than contract doctrine in products liability cases is inefficient, Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law," 14 Journal of Legal Studies 461 (1985). W. Landes and R. Posner take a slightly different view in "A Positive Economic Analysis of Products Liability," 14 Journal of Legal Studies 529 (1985).
28. 17. See discussion in R. Cooter and T. Ulen, 1988, Law and Economics, Glenview, IL: Scott Foresman, 421-462; and S. Shavell, 1987, Economic Analysis of Accident Law, Cambridge, MA: Harvard University Press. George Priest argues that the use of tort rather than contract doctrine in products liability cases is inefficient, Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law," 14 Journal of Legal Studies 461 (1985). W. Landes and R. Posner take a slightly different view in "A Positive Economic Analysis of Products Liability," 14 Journal of Legal Studies 529 (1985).
29. 17. See discussion in R. Cooter and T. Ulen, 1988, Law and Economics, Glenview, IL: Scott Foresman, 421-462; and S. Shavell, 1987, Economic Analysis of Accident Law, Cambridge, MA: Harvard University Press. George Priest argues that the use of tort rather than contract doctrine in products liability cases is inefficient, Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law," 14 Journal of Legal Studies 461 (1985). W. Landes and R. Posner take a slightly different view in "A Positive Economic Analysis of Products Liability," 14 Journal of Legal Studies 529 (1985).
30. 18. The standard was first proposed by Justice Traynor in his concurrence in Escola v. Coca-Cola Bottling Co. 24 Cal. 2d 453 (1944). The rule did not become law in California until almost twenty years later, but thereafter it rapidly spread to other states.
31. 19. See Article 1641 of the Civil Code, which provides that the seller is liable in respect of hidden defects that render the product unsuitable for its intended use.
32. 20. The strict liability standard is a feature of state, not federal, law in the United States. This is a minor but not unsurmountable problem for our model, since our assessments of DDP and vetoes in the various countries were made at the national level. We believe that the constitutional framework of most states is consistent with the federal scheme, since all states but Nebraska have bicameral legislatures. Furthermore, fragmented national parties may be replicated at the state level.
33. 21. Council Directive 85/374/EC.
34. 22. P. Kelly and R. Attree, 1992, European Products Liability, London: Butterworths, p. 103.
35. 23. For example, in that the seller of a defective product can be held jointly liable with the producer vis-a-vis hidden defects in the product. This principle derives from the contract law origins of product liability in France.
36. 24. The Civil Code (BGB) of 1896 dealt in only a general way with contract law. There was a separation of warranty doctrine, which dealt with a consumers' interest in a properly functioning product and the problem of damages to health or property resulting from a defective product.
37. 25. For example, in tort product requirements are standardized, whereas in contract breach cases they must be determined with regard to the specific contract. The seller's duties to inform the buyer are stricter in contract cases. Damages from pure financial loss are not recoverable in tort but only under breach of contract actions. See Kelly and Attree, supra note 22, pp. 132, 138. In contract, the defendant must prove that he was not at fault. Tort claims are more often used.
38. 26. According to a 1988 decision (BGH in NJW 1988, 2611 ff "Mehrwegflasche II") the burden of proof depends on several factors: whether there has been a defect that affects the claimant's right, whether the defect results from the production process, and whether there has been a negligent or intentional disregard of due care related to the defect. The defendant must exonerate himself from liability from fault for matters related to internal production, and "in practice, this exoneration almost never succeeds." Kelly and Attree, supra note 22, at 147.
39. 27. Passed on December 15, 1989, it came into force on January 1, 1990. For the text of the Act, see Bundesgesetzblatt I 1989 S 2198.
40. 28. Kelly and Attree, supra note 22, p. 152.
41. 29. G. Schwartz, 1991. "Product Liability and Medical Malpractice in Comparative Context," in P. Huber and R. Litan, Eds. The Liability Maze, Washington, D.C.: Brookings, p. 49.
42. 30. Decree 224 of May 24, 1988. Note that decrees are frequently used when the Italian legislature is paralyzed, but that there is rarely conflict between the versions of a law promulgated by decree and those subsequently promulgated by the legislature.
43. 31. This occurred with the 1964 decision of the highest court of appeals, the Corte di Cassazione, of May 25, 1964, no. 1270 in Foro Italiano, 1965, 1, 2098. Kelly and Attree, supra note 22, p. 226.
44. 32. Ibid., p. 234.
45. 33. See discussion of a 1989 case of foodstuffs poisoning in G. Howells, 1993, Comparative Product Liability, Brookfield, MA: Dartmouth University Press, p. 151.
46. 34. Rolf Magrell, Olaf Nillson, and Stefan Sandeun, 1988, "Sweden," in Warren Freedman, Ed. Product Liability: an International Manual of Practice, Dobbs Ferry, NY: Oceana, p. 16.
47. 35. Kelly and Attree, supra note 22, p. 334.
48. 36. See Howells, supra note 33.
49. 37. In the words of one commentator, the 1980 law "cannot be explained in terms of a political decision to rectify any social or economic wrong or resolve an particular legal problem stemming from products liability . . . the law can rather be explained in terms of the legislator's awareness of the new developments in the advanced legal systems, and its realization that the law should adapt to the changes in the Israelis' socio-economic organization." Daniel Moe, "Israel," in Freedman, supra note 34, p. 3.
50. 38. A translation appears in Lloyds Product Liability International July 31, 1994, at 101.
51. 39. J. Mark Ramseyer has shown the variety of collateral incentives that the long-ruling Liberal Democratic Party imposed on the Japanese Supreme Court. See Ramseyer and Frances Rosenbluth, 1993, Japan's Political Marketplace, Cambridge, MA: Harvard University Press, and also Ramseyer and Eric B. Rasmusen, "Judicial Independence in Civil Law Regimes: Econometrics from Japan," manuscript on file with authors.
52. 39. J. Mark Ramseyer has shown the variety of collateral incentives that the long-ruling Liberal Democratic Party imposed on the Japanese Supreme Court. See Ramseyer and Frances Rosenbluth, 1993, Japan's Political Marketplace, Cambridge, MA: Harvard University Press, and also Ramseyer and Eric B. Rasmusen, "Judicial Independence in Civil Law Regimes: Econometrics from Japan," manuscript on file with authors.
53. 40. The mean number of vetoes for the latter group was 1.3, compared with 2.0 for the first two groups combined. The mean coalition duration was 7.18, compared with 4.62 for the first two groups.
54. 41. These separate courts began in France and have been adopted in most continental jurisdictions. H.B. Jacobini, 1991, An Introduction to Comparative Administrative Law, New York: Oceana.
55. 42. J. Mark Ramseyer, "The Puzzling (In)dependence of Courts: A Comparative Approach," 23:2 Journal of Legal Studies 721 (1994).
56. 43. William Landes and Richard Posner, "The Independent Judiciary in an Interest Group Perspective," 18 Journal of Law and Economics 875 (1975).
57. 44. Ramseyer, supra note 42.
58. 45. We began by counting the total number of pages in the country's general air and water pollution statutes at the national level. We then took a 10-page sample and counted the number of words on each page. Next we multiplied the total number of pages by the average number of words in the 10-page sample to produce our estimates. To compensate for the different structure of the Japanese language, we used a crude measure by which two characters are equivalent to one English word. Note that even with this adjustment, our estimate probably overstates the number of English-language equivalent words in the statute.
59. 46. Another available figure, for which implementing regulations are not available, is the New Zealand Clean Air Act (19,282 words).
60. 47. Another country for which substatutory regulations were not available was Canada. The Canadian Environmental Protection Act, as recorded in Statutes of Canada (1993) Chap. C-15.3, totals 25,480 words, and covers subjects beyond air and water pollution. However, other elements of air and water pollution regulation are dealt with by unrelated statutes in Canada such as the Canada Shipping Act and the National Telecommunications Powers and Procedures Act.
61. 48. An excellent discussion of environmental regulation in Japan is found in Frank Upham, 1987, Law and Social Change in Postwar Japan, Cambridge, NY: Harvard University Press.
62. 49. David Vogel, 1986, National Styles of Regulation, Ithaca, NY: Cornell University Press.
63. 50. See J. Badaracco, 1985, Loading the Dice: A Five Country Study of Vinyl Chloride Regulation, Cambridge, MA: Harvard University Press.
64. 51. Vogel, supra note 49 at 173.
65. 52. Tommy Nillson, 1993, "Sweden," in M. Brealey, Ed. Environmental Liabilities and Regulation in Europe, The Hague: International Business Publishing Ltd, p. 433.
66. 53. This regression only concerns subjective perceptions of discretion by comparative law experts. Alter eliciting their opinions, we explained the model to them. The typically expressed skepticism that such a simple model could work. Apparently, the comparative law experts should find the strength of the regression results to be counterintuitive.
67. 54. This agreement is developed at greater length in R. Cooter and J. Drexl, "The Logic of Power in the Emerging European Constitution: Game Theory and the Division of Powers" 14 International Review of Law and Economics 307 (September 1994).
68. 55. The start year usually begins with 1945 or with the subsequent establishment of a new constitutional order. Occasionally, problems in gathering the data forced us to modify the original start date.
69. 56. A coalition change only occurs when the party composition of the cabinet changes. A simple reshuffling of seats among existing coalition partners is not counted as a change.
70. 57. Although Italy has had over 50 governments in the postwar period, some of these cabinets replaced earlier cabinets of exactly the same party composition. For purposes of our calculations we did not count such instances as a break in the coalition.
71. 58. For the United States, the only changes in coalition occur when the Presidency changes hands. Hence the average duration is higher than the constitutionally mandated 4-year Presidential term.