What's Law Got to Do With It?: What Judges Do, Why They Do It, and What's at Stake by Charles Gardner Geyh

Author:Charles Gardner Geyh [Geyh, Charles Gardner]
Language: eng
Format: epub, pdf
ISBN: 9780804782128
Goodreads: 35191683
Publisher: Stanford University Press
Published: 2011-08-09T00:00:00+00:00

A Theory of Precedent as Consensual Norm

Strategic models of judging provide a promising starting point for researchers interested in understanding how individual preferences interact with institutional constraints to promote the development of consensual norms (Axelrod 1984). Cooperative norms often play an important role in solving social dilemmas, which “occur whenever individuals in interdependent situations face choices in which the maximization of short-term self interest yields outcomes leaving all participants worse off than feasible alternatives” (Ostrom 1998, 1; see also Posner 1993). Such a dilemma may arise in the context of judicial decision-making on collegial appellate courts. Assuming that judges are primarily motivated by their personal policy preferences (see Schauer 1997; Epstein and Knight 1998), each judge on a collegial court thus wishes to vote in accordance with her own policy preferences regardless of existing precedent. A completely sincere judge, motivated by her own preferences, will therefore choose the outcome she prefers ideologically, even if doing so would require the invalidation of a conflicting precedent. If all judges choose to follow their own policy preferences in this way, however, then any existing precedents, including those produced by judges serving on the court, are vulnerable to similar invalidation. Judges are thus faced with a social dilemma of the kind described by Ostrom. If judges maximize their own self-interest by sincerely voting to further their own policy preferences in the short term regardless of conflicting precedent, they create an environment in which their own precedential opinions are similarly vulnerable to invalidation in the long run. Or, in game theoretic terms, individual rationality drives each judge to defect in the short term, thus achieving an equilibrium that would substantially undermine, if not eliminate, individual adherence to stare decisis. This equilibrium is suboptimal for all players/judges in the long run, however, who ultimately desire to have their preferences preserved and followed as precedent in the future.4

Reciprocity norms develop as one means people can develop to cope with social dilemmas that result in suboptimal benefits for the group. One mechanism to sustain cooperation, for example, is repeated play. Iterated interactions allow the players to establish strategies that achieve cooperation to the extent that the value of long-term cooperation is sufficiently large for each player. “If the value of future cooperation is large and exceeds what can be gained in the short term by cheating, then the long-term individual interests of the players can automatically and tacitly keep them from cheating, without the need for any additional punishments or enforcements by third parties” (Dixit and Skeath 1999, 257). When the game is infinitely repeated or where it extends for indeterminate duration, players who defect in early rounds can be “punished” with defection in subsequent rounds, while players who cooperate can be “rewarded” with cooperation. On the other hand, where the relationship between the players is of a fixed and known length, the rational strategic move in the last round is to defect (as no benefit from cooperation can accrue in future rounds)—this will create a rollback or unraveling effect that produces cheating to the very first round of play.

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