Judicial Reputation

Judicial Reputation A Comparative Theory

by Nuno Garoupa and Tom Ginsburg

University of Chicago Press, 2015
Cloth: 978-0-226-29059-1 | Paper: 978-0-226-47870-8 | Electronic: 978-0-226-29062-1
DOI: 10.7208/chicago/9780226290621.001.0001

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ABOUT THIS BOOKAUTHOR BIOGRAPHYREVIEWSTABLE OF CONTENTS

ABOUT THIS BOOK

Judges are society’s elders and experts, our masters and mediators. We depend on them to dispense justice with integrity, deliberation, and efficiency. Yet judges, as Alexander Hamilton famously noted, lack the power of the purse or the sword. They must rely almost entirely on their reputations to secure compliance with their decisions, obtain resources, and maintain their political influence.

In Judicial Reputation, Nuno Garoupa and Tom Ginsburg explain how reputation is not only an essential quality of the judiciary as a whole, but also of individual judges. Perceptions of judicial systems around the world range from widespread admiration to utter contempt, and as judges participate within these institutions some earn respect, while others are scorned. Judicial Reputation explores how judges respond to the reputational incentives provided by the different audiences they interact with—lawyers, politicians, the media, and the public itself—and how institutional structures mediate these interactions. The judicial structure is best understood not through the lens of legal culture or tradition, but through the economics of information and reputation. Transcending those conventional lenses, Garoupa and Ginsburg employ their long-standing research on the latter to examine the fascinating effects that governmental interactions, multicourt systems, extrajudicial work, and the international rule-of-law movement have had on the reputations of judges in this era.

AUTHOR BIOGRAPHY

Nuno Garoupa is professor of law at Texas A&M University and holds the chair in research innovation at the Católica Global School of Law, Universidade Católica Portuguesa in Lisbon, Portugal. Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago Law School and research fellow at the American Bar Foundation.

REVIEWS

“Judicial Reputation offers an excellent application of state-of-the-art theory to the organization of the courts. With clean writing and a clear structure, the highly regarded Garoupa and Ginsburg have written a wonderful book which makes serious, much-needed advances in the empirical study of courts, in comparative law, in constitutional law, and in comparative politics.”

— J. Mark Ramseyer, Harvard Law School

“Judicial Reputation is the culmination of a remarkable research agenda by two of the foremost scholars of the world’s judicial systems. The authors have produced a model of comparative scholarship, integrating methodologies in a productive and persuasive way by employing both quantitative and qualitative empirics. From the fine-grained details of appointment processes to sweeping questions of international judicial networks, Garoupa and Ginsburg make one thing very clear: reputation matters. Shifting away from the conventional approaches that privilege legal tradition and path dependency, the authors embrace a functionalist analysis of reputation to explain judicial development. By disaggregating collective and individual reputation and the roles of internal and external audiences, they present a persuasive theory of institutional change that better accounts for the pockets of exception in individual systems and the areas of convergence across systems. In the course of their argument, the authors also challenge the ideal of global best practices in judicial reform—a welcome reminder that such practices are often contingent and must be tailored to specific contexts. Judicial Reputation will be an essential resource for students in political science and law, but it should also be required reading for any scholar, judge, or politician interested in judicial reform.”

— Erin F. Delaney, Northwestern Law School

“Garoupa and Ginsburg offer the first comprehensive theory of judicial reputation, showing how collective or individual reputations of judges can have a variety of impacts on both the functioning of courts and legal systems in general. Their decisive analysis draws on experiences from Asia, Europe, and the Americas. Judicial Reputation is a book of huge significance—not only, as its title suggests, for comparative legal theory, but also because of the vast potential applications of Garoupa and Ginsburg’s research. The chapter on the international reputation of judges, for example, unveils a fascinating dimension of globalization and paves the way for further research on forum shopping and international judicial competition.”

— Gilles Cuniberti, University of Luxembourg

"Garoupa and Ginsburg explore how judges respond to the reputational incentives provided by the different audiences they interact with—lawyers, politicians, the media, and the public itself—and how institutional structures mediate these interactions in legal systems throughout the world. Arguing that judicial structure is best understood not through the lens of legal culture or tradition, but through the economics of information and reputation, they draw on their prior research to identify the effects that governmental interactions, multicourt systems, extrajudicial work, and the international rule-of-law movement have on the reputations of judges."

— Law & Social Inquiry

"Reputation, as the authors of this important book define, is the stock of assessments about an actor’s past performance. Reputation is crucial in many areas, and as the authors say, judging is no exception."

— Livelaw

"An impressive contribution to the study of judges and judicial systems. The theoretical contribution is vast, in that it articulates a vision for understanding micro-level judicial behavior and macro-level functioning of legal systems. It moves well beyond the traditional 'legal traditions' argument, but not without taking seriously what that conventional wisdom has to offer. Garoupa and Ginsburg make a strong case for viewing the components of and incentives for various types of judicial reputation as a key factor in understanding the way judges and courts operate in different historical and environmental contexts. They investigate the sometimes conflicting need for judges to maintain individual and collective reputations. They focus specifically on the role of institutions in shaping incentives for judges. Garoupa and Ginsburg’s mixed-methods approach represents the very best of empirical research on courts. They draw on a deep well of data from judiciaries around the world, but their findings are just as applicable to questions of courts and judges of a much more local nature. Researchers and reform-minded practitioners across a wide swath of the law and courts world will find inspiration in these pages.Highly recommended."

— Choice

"Even in the world’s largest democracy, India, recent years have seen a worrying rise in the number cases involving judicial misbehaviour, including acts of corruption. Against that background, the book under review makes a timely appearance. It deals with that extremely precious commodity, judicial reputation, and discusses the complex factors that work to support or undermine the good name of judges....A high degree of intellectual rigour and evidence-based reasoning."

— The Commonwealth Lawyer

Preface

Introduction - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0001
[principal-agent model, reputation, judiciary, judges, comparative law]
This chapter introduces the principal-agent model, treating judges as agents of society. We begin by introducing a contrast between a judiciary organized around careers, in which judges enter the profession with relatively low levels of human capital but then progress in a hierarchy, with what is sometimes called the recognition model, in which judges are hired later in life with relatively high levels of human capital. The former model emphasizes collective reputation and internal audiences for judging, while the latter model emphasizes individual reputation and external audiences. The chapter also lays out the structure of the book and argument, presenting summaries of each of the substantive chapters that follow and helping to lay out our empirical approach, which uses suggestive case studies from prominent jurisdictions. (pages 1 - 13)
This chapter is available at:
https://academic.oup.com/chica...

1. A Theory of Judicial Reputation and Audiences - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0002
[reputation, team production, Japan, judiciary, judges]
This Chapter first defines reputation, treating it as the stock of judgments about an actor’s past behavior. To develop judicial reputation, judges must have the ability to communicate with certain audiences that react to decisions: the media, politicians, lawyers and law professors, and the public itself. Judicial reputation is also distinctive in that it is produced in teams: each judge must invest energy in reputation, but it is also a quality of the judiciary as a whole. We use the economics of team production to show how individual and collective reputations interact. There are risks associated with too much emphasis on either individual or collective reputation. We then examine how various features of judicial organization affect the production of reputation. These include the career structure of the judiciary; whether opinions are collective or individual; the level of publicity; systems of discipline; and judicial discretion over case selection and sentencing, among others. The chapter contrasts the American and Japanese judiciaries as an illustration. (pages 14 - 49)
This chapter is available at:
https://academic.oup.com/chica...

2. Pockets of Exception - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0003
[comparative law, administrative law, constitutional law, judging, hybrid]
In keeping with our argument that function rather than legal tradition is the primary driver of judicial organization, we show that tradition is not destiny. Rather, in countries from both common law and civil law traditions, there are particular hybrid models that exist in specific places. Examples include constitutional court judges in Europe, which are produced by a “recognition” process, or administrative or military tribunals in common law countries, which tend to feature career judiciaries. We argue that these “pockets of exception” tell us a good deal about the fundamental forces at work in determining judicial organization. When judges are engaged in high-level tasks like lawmaking, a recognition system makes more sense because of the high levels of human capital involved. For more routine tasks, a career structure may make sense. A mix of a dominant system with pockets of the other pure solution seems to be an appropriate technique to address agency problems. (pages 50 - 74)
This chapter is available at:
https://academic.oup.com/chica...

3. Wearing Two Hats: Judges and Nonjudicial Functions - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0004
[non-judicial functions, judges, judicial independence, reputation, commissions]
One of the interesting and understudied phenomena in comparative judicial studies concerns the roles judges play in exercising non-judicial functions. In recent years, judges have led commissions of inquiry, worked on legislation, and in some cases even served as acting heads of state. The relationship between these functions and the core judicial role is a source of great contention in many systems. Our particular concern is the impact of these roles on judicial reputation. We argue that non-judicial functions can, within certain limits, enhance judicial reputation; but there are also risks that come from too much judicial involvement in non-judicial functions. As in so many areas, the task is one of optimization, within a local context, rather than maximizing a single abstract value like “judicial independence”. The Chapter provides several case examples from various countries. (pages 75 - 97)
This chapter is available at:
https://academic.oup.com/chica...

4. The Selection and Monitoring of Judges: The Spread of Judicial Councils - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0005
[judicial appointments, judicial councils, selection, discipline, promotion]
Chapter Five takes up the specific issue of the selection of judges, focusing special attention on a relatively new institution known as the judicial council. Judicial councils have spread around the world in recent decades, in part because they have been promoted as a best practice to enhance judicial independence. Councils play various functions: they can participate in the recruitment and selection of judges, in monitoring and discipline, and in promotions. We use analogies from corporate boards of directors to understand judicial councils, and also argue that they are likely to be unstable because demands for independence and accountability vary over time. We also conduct a multivariate statistical analysis. Despite many claims that judicial councils enhance judicial independence, we find that they do not. Instead, they are locations for contests of reputation among various audiences. (pages 98 - 140)
This chapter is available at:
https://academic.oup.com/chica...

5. When Courts Collide: Intracourt Relations and the Problem of Audiences - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0006
[constitutional court, Supreme court, conflict, competition]
Chapter Six uses the reputation perspective to consider an important issue in constitutional design: competition among high courts within a given legal system. In recent years, the spread of designated constitutional courts has meant that there are, in many systems, multiple apex courts. In such systems, the relations among top courts are complicated, and we explain how the idea of reputation illuminates the different dynamics identified by scholars who have examined the local conflicts that arise. Our basic account is that, when constitutional courts coexist with supreme courts, the two bodies will invitably compete for reputation but that this is exacerbated by internal divisions in the courts. We also use case studies and an empirical analysis to identify when contests will occur. (pages 141 - 166)
This chapter is available at:
https://academic.oup.com/chica...

6. The Rule of Lawyers: Globalization, International Law, and Judicial Reputation - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0007
[International law, International courts, Rule of law, globalization]
This chapter takes up the impact of globalization on courts, through consideration of the global rule of law movement and the expansion of the international judiciary. The rule of law movement, in which outside actors spend resources to promote judicial reform and independence, obviously expands the external audiences for judicial activity, creating new opportunities to invest in reputation. And recent years have seen a significant proliferation of international courts—now numbering more than twenty-five by some definitions. These courts are interesting environments for testing our theory, because they have from the very beginning sought to merge elements of various legal traditions in defining procedures. We argue that the new global environment has changed the supply and demand of judicial reputation, with a greater emphasis on the collective reputation of courts and the emergence of new external audiences. (pages 167 - 186)
This chapter is available at:
https://academic.oup.com/chica...

7. Conclusion: The Shift toward the External Audience and Lessons for Reform - Nuno Garoupa, Tom Ginsburg
DOI: 10.7208/chicago/9780226290621.003.0008
[media, judicial reform, audiences, judiciary]
This chapter summarizes the argument of the book and considers several possible reforms that are implied by the analysis. These include variable pay for judges, purging and vetting judges, and investing in media management. Each of these reforms might serve to enhance the reputation of the judiciary under some circumstances. We also argue that secular changes in society are pushing courts to focus more on external audiences outside the judiciary, leading to new institutional reforms. We conclude with a restatement of our basic claims: judicial reputation matters, and institutional structure matters for the production of reputation. (pages 187 - 198)
This chapter is available at:
https://academic.oup.com/chica...

Appendix A: List of Courts Included in the Dataset

Appendix B: Data on Judicial Councils

Notes

Index