Perhaps we should pay federal circuit judges more

Boston University Law Review

Volumn 88, Issue 3, 2008, Pages 815-827

  Cross, Frank B ^a,b  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 46749098635     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (72)

1. Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. REV. 63, 66 (2008).
2. Id. at 73 n.42.
3. Chief Justice John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary, THE THIRD BRANCH: NEWSLETTER OF THE FEDERAL COURTS (Admin. Office of the U.S. Courts, Wash., D.C.), Jan. 2007, at 1, available at http://www.uscourts.gov/ttb/jan06ttb/ yearend/index. html.
4. Posting of Peter Lattman to Wall Street Journal Law Blog, http://blogs.wsj.com/law/2006/12/14/justice-scalia-bemoans-judicial-pay/ (Dec. 14, 2006, 10:53 A.M.) (quoting a Dec. 13, 2006 speech by Justice Scalia).
5. Abner Mikva, Attracting the Best, NAT'L L.J., June 4, 2007, at 23.
6. CONG. RESEARCH SERV., JUDICIAL SALARY: CURRENT ISSUES AND OPTIONS FOR CONGRESS, at CRS-25 (2007), available at http://assets.opencrs. com/rpts/RL34281_ 20071212.pdf.
7. Id. at CRS-36 to -37.
8. See, e.g., Russell Smyth, Do Judges Behave as Homo Economicus, and If So, Can We Measure Their Performance? An Antipodean Perspective on a Tournament of Judges, 32 FLA. ST. U. L. REV. 1299, 1302-09 (2005) (reviewing evidence that judges are concerned with incentives other than financial ones).
9. We might very well want judges who put less importance on projecting political power, because they would be less inclined to reach political or ideological outcomes (which Baker attempts to measure, see Baker, supra note 1 at 85-97). However, we might prefer judges who put greater importance on projecting legal power, which presumably would induce them to produce legally better decisions and opinions.
10. In addition, many workers in private industry are motivated to do a better job by the promise of incentive compensation, but this is inapplicable to the federal judiciary.
11. See Lee Epstein et al., The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. POL. 296, 296 (2006).
12. See Baker, supra note 1, at 76.
13. Id. at 78.
14. Id.
15. See id. at 89.
16. Id. at 91.
17. Many D.C. Circuit judges come from outside of Washington, D.C. and Professor Baker has appropriately adjusted for this by using their preexisting locale. Baker, supra note 1, at 83-84 n.75. However, the effect is not entirely limited to the D.C. Circuit. Michael Boudin of the First Circuit had been in private practice in Washington, D.C. prior to taking the bench in Boston, although he was first nominated for the D.C. District Court. J. Michael Luttig of the Fourth Circuit had spent a decade in government in Washington D.C. This list is incomplete but shows that mobility is not uncommon. Federal judicial biographies can be found at Judges of the United States Courts, http://www.fjc.gov/public/home.nsf/hisj (search by judge name; then click on judge name when results appear). Most circuit court judges are drawn from within the circuit, so the measure has some accuracy, but it is rough.
18. For example, when Judge Luttig left the bench, he moved from Richmond, Virginia to Chicago. See Jerry Markon, Appeals Court Judge Leaves Life Appointment for Boeing, WASH. POST, May 11, 2006, at A 11. This move likely would have occurred earlier had he not served as a federal judge.
19. Baker, supra note 1, at 79-81.
20. See Judges of the United States Courts, supra note 18.
21. Baker, supra note 1, at 80.
22. Id. at 91.
23. At a general level, this effect is not implausible. It is harder to be an average quality lawyer in very high-paying areas which require more aptitude than it is to be an average quality lawyer in lower paying areas.
24. Baker, supra note 1, at 85.
25. Id. at 86.
26. Id. at 95-97.
27. Id. at 95-96.
28. Some of the shortcomings of Baker's citation analysis are summarized briefly in Frank B. Cross et al., Warren Court Precedents in the Rehnquist Court, 24 CONST. COMM. 3, 5-6 (2007). While these limitations do not invalidate the measure, they counsel for caution in placing heavy reliance on results of the measure.
29. Id. at 97.
30. Id. at 98.
31. Id. at 101 (finding that NETCOST has a significant impact on the rate of dissent in controversial cases).
32. Id.
33. JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA 129-30 (2007).
34. Baker, supra note 1, at 105.
35. See id. at 109.
36. Id. at 105 n. 128.
37. See Amos Tversky & Daniel Kahneman, Belief in the Law of Small Numbers, in A HANDBOOK FOR DATA ANALYSIS IN THE BEHAVIORAL SCIENCES: METHODOLOGICAL ISSUES 341, 343 (Gideon Keren & Charles Lewis eds., 1993).
38. See John Connolly, Estimation of Sample Size Required for Experiment (Apr. 3, 2008) (unpublished manuscript, available at http://www.ucd.ie/statdept/jconnolly/pgrm/ sample%20size/samplesize.doc). The noise would only produce a false positive Type I error if the noise were somehow systematically associated with the independent variables. There is no plausible explanation for this in Baker's study.
39. Baker, supra note 1, at 112.
40. Id. at 110.
41. Rajdeep Grewal et al., Multicollinearity and Measurement Error in Structural Equation Models: Implications for Theory Testing, 23 MARKETING SCI. 519, 526-27 (2004).
42. Charlotte H. Mason & William D. Perreault, Jr., Collinearity, Power, and Interpretation of Multiple Regression Analysis, 28 J. MARKETING RES. 268, 277 (1991).
43. Professor Baker suggests the multicollinearity should not bias the size of the coefficients, which are small. Baker, supra note 1, at 110. This may or may not be true and is difficult to establish. Even if true, a small coefficient could still justify some increase in judicial pay, as I explain in my conclusion.
44. See infra notes 57-68 and accompanying text.
45. Baker, supra note 1, at 86.
46. See CASS R. SUNSTETN ET AL., ARE JUDGES POLITICAL? 22 (2006) (concluding that "votes of judges are significantly influenced by the party affiliation of the president who appointed the other two judges on the same panel").
47. See id.
48. FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 165 (2007). Similar results were found in Richard L. Revesz, Environmental Regulation, Ideology, and theD.C. Circuit, 83 VA. L. REV. 1717, 1719 (1997).
49. Baker, supra note 1, at 92-94.
50. Id. at 67 (emphasis added).
51. Id. at 112.
52. See Kevin D. Hoover & Mark V. Siegler, Sound and Fury: McCloskey and Significance Testing in Economics, J. ECON. METHODOLOGY (forthcoming) (manuscript at 19), available at http://www.econ.duke.edu/∼kdh9/Source%20Materials/McCloskey/ Sound%20and%20Fury%206%20March%202007.pdf.
53. Baker, supra note 1, at 112.
54. See George A. Akerlof, Labor Contracts as Partial Gift Exchange, 97 Q.J. ECON. 543, 567 (1982);
55. Gillian Lester, Careers and Contingency, 51 STAN. L. REV. 73, 135 (1998).
56. Ernst Fehr & Simon Gächter, Fairness and Retaliation: The Economics of Reciprocity, 14 J. ECON. PERSP. 159, 169 (2000).
57. George A. Akerlof & Janet L. Yellen, The Fair Wage-Effort Hypothesis and Unemployment, 105 Q.J. ECON. 255, 255 (1990).
58. See, e.g., Roberts, supra note 3.
59. Baker, supra note 1, at 82.
60. It should be noted that Professor Baker is not the only person to have attempted to study the effect of judicial pay levels. Others have analyzed state judicial pay, which has the advantage of providing differential cross-sectional pay levels, but the disadvantage of being only a rough parallel to the federal judiciary. One study used an approach similar to Professor Baker's to examine state judicial salaries and found little positive effect on their measures of judicial output (which included total opinions, outside citations, and dissents). See Stephen J. Choi et al., Are Judges Overpaid?: A Skeptical Response to the Judicial Salary Debate 59 (Univ. of Chicago Law School John M. Olin Law & Economics Research Paper Series, Working Paper No. 376, 2008), available at http://ssrn.com/abstract=1077295.
61. Another study found that higher levels of state judicial pay were significantly associated with lower levels of general governmental corruption. See Adriana S. Cordis, Judicial Checks on Corruption in the United States 4 (February 2008) (unpublished manuscript, available at http.7/ssrn.com/abstract=1019897).
62. See DOUGLASS C. NORTH, INSTITUTTONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 54 (1990) ("[T]he inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World.").
63. ROBERT J. BARRO, DETERMINANTS OF ECONOMIC GROWTH: A CROSS-COUNTRY EMPIRICAL STUDY 26-28 (1997).
64. KENNETH W. DAM, THE LAW-G ROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT 93 (2006). Dam notes that "[bjetter-performing courts have been shown to lead to more developed credit markets" and that a "stronger judiciary is associated with more rapid growth of small firms as well as with larger firms in the economy." Id. (citation omitted).
65. Id. at 116 (discussing Ukraine and Mexico as examples of countries where low salaries have diverted the best law students into private practice rather than the judiciary).
66. Id. (quoting Singaporean Prime Minister Lee Kwan Yew).
67. Choi, supra note 57, at 13.
68. James F. Spriggs, II & Paul J. Wahlbeck, Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991, 48 POL. RES. Q. 573, 589-90 (1995).
69. Deborah J. Barrow & Gary Zuk, An Institutional Analysis of Turnover in the Lower Federal Courts, 1900-1987, 52 J. POL. 457, 473-74 (1990).
70. Markon, supra note 18.
71. Leaving So Soon: Will Pay Issues Mean Only the Wealthy Can Afford To Serve?, THE THIRD BRANCH: NEWSLETTER OF THE FEDERAL COURTS (Admin. Office of the U.S. Courts, Wash., D.C.), Feb. 2007, at 1.
72. See Posting of Peter Lattman to Wall Street Journal Law Blog, http://blogs.wsj.com/law/2007/09/21/judge-paul-cassell-resigning/ (Sep. 21, 2007, 15:48 EST).