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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


This book is about how the design of a high court influences how judges decide appeals. It is comforting and convenient to believe the “Rule of Law” dictates how a judge on a high court will decide crucial issues ranging from the death penalty and national security to regulation of banks or railways. However, we argue that how a court is designed can make a fundamental difference in who wins a particular case and how the law develops.

One element of the design of high courts has been front and center in the news in many countries recently—how judges are appointed. With the death of Justice Antonin Scalia in the United States, the appointments process for justices of the US Supreme Court was thrown in disarray with Republican members of the Senate refusing to even consider President Obama’s nominee. In Canada, the retirement of Justice Thomas Cromwell provided an opening for newly elected prime minister Justin Trudeau to make good on his promises to make the appointments process more transparent. At the same time he has to determine how to fulfill his promise of ensuring any nominee is fully bilingual. In India, the Supreme Court recently ruled that an attempt to wrest control of the appointment process from the judges themselves is unconstitutional. The Indian Supreme Court then embarked on its own review of its processes to make the system more transparent, yet allow the judges to retain control of who sits on the Court.

The appointment process is obviously central to how a court decides as that process determines the expertise and values that are brought to bear on appeals. Each of these countries has chosen a different design for appointing judges to their high courts. In the United States, the president appoints judges with the “advice and consent” of the Senate in a highly public and political process. The prime minister of Canada appoints justices to the Supreme Court of Canada after consulting a range of parties in what has tended to be a highly secretive, closed process. In India, the chief justice and the four most senior judges on the Court select new judges. These distinctive processes have the potential to yield profoundly different courts.

However, although the appointment process is important, it is not the only design feature of high courts that matters or way in which high courts differ in design. For example, the US Supreme Court has nine justices hearing recently about 80 cases per year with all nine justices hearing almost all appeals. The UK Supreme Court, on the other hand, has 12 members who tend to sit in panels of five judges to hear about 90 appeals per year, and the Supreme Court of Canada has nine members sitting in panels of five, seven, or nine judges to hear about 80 cases. At the far extreme, the Indian Supreme Court has up to 31 members hearing most of its over 7,000 appeals in panels of two or three judges.

We argue that such differences in design—in how judges are appointed, whether they sit in panels, in how many cases the court hears—matter to how a court functions and how its judges make decisions. In particular, we think of these different design elements as wedges that push courts in different directions on two key dimensions by constraining or shaping the choices made by judges and other actors such as litigants and legislators. First, they influence the extent to which judges follow their own personal views of the appropriate outcome of an appeal—that is, how committed they are to following their personal views in deciding cases rather than in some narrower sense applying the “law" Second, they affect how willing the judges are on a court to be collegial—how cooperative they are in reaching decisions. We argue that these two factors—commitment and cooperation—are fundamental bases for differentiating high courts and that the design of the court influences courts in both these dimensions.

The design of a court, and the level of commitment and cooperation it engenders, is central to a just legal system. It creates the basis for the rule of law— most obviously by influencing the extent to which outcomes are determined by personal preferences of judges—but in other ways such as through framing the influence of democratic principles. It fosters access to justice such as through rules about standing and appeals to high courts. It guides the development, consistency, and coherence of the common law through, for example, affecting the availability and strength of precedent.

Ours is principally a positive exercise: how does design matter? Answering this question is key for understanding a particular court and seeking to improve its operation. Part of our argument is that there are trade-offs across the main design elements that reinforce or mitigate the influence of each element. Moreover, each court is embedded in a web of other institutions that have different strengths and weaknesses. As a result, we do not view this as an exercise in determining what the optimal design of a high court would look like but of evaluating ways to make high courts more just. Amartya Sen has argued that it is better not to seek an ideal set of just institutions but to examine and compare feasible, actual institutions to ascertain how to make society more just.[1] In this spirit, we seek to compare how courts are actually designed and how these design features affect outcomes to aid in identifying high court reforms that make particular courts more just.

We begin in Chapter 1 by setting out and justifying the building blocks of commitment and cooperation. We see these two dimensions as allowing us to situate high courts relative to each other. We use them to focus on the five main high courts in our study—the US Supreme Court, the UK Supreme Court (and its predecessor House of Lords), the Supreme Court of Canada, the High Court of Australia, and the Indian Supreme Court. Chapter 1 provides both a preliminary assessment of how these courts sit relative to each other along these two dimensions and a brief overview of the key design choices made by each of these courts.

We argue that high court design influences how judges decide. Chapter 2 provides the basic theoretical structure for this argument. We primarily build on Epstein, Landes, and Posner’s labor market model of how judges decide.[2] We argue that a judge makes decisions like any other individual, influenced by a range of factors such as his own view of the law and the preferred outcome of the appeal, his reputation, his workload, and even in some cases financial or material concerns. How he balances these various factors depends on the design of the court. We set out a preliminary framework for thinking about the relationship between the institutional design and how individual judges reach decisions.

The balance of the book looks at particular design choices made for different courts. Chapter 3 examines one of the most central—the appointment process. As described above, appointment processes vary considerably across countries—from very open, political procedures to secretive, closed processes and even self-selection by judges. Chapter 3 finds that there is some broad correlation between these design elements and whether judges on a court are polarized, are consistent in their decisions across areas of law, and tend to dissent in appeals.

It is not only who is appointed to a court that matters but also who hears particular appeals. Does it make a difference whether all judges hear each appeal or whether certain subsets of judges hear particular appeals? We argue that it matters a great deal. In Chapter 4 we look at whether the identity of the judges on the panel matters, holding for Chapter 5 the relationships between the judges on a given panel. The US Supreme Court has largely taken the identity issue out of play by having all nine judges hear all appeals. However, for the other countries, a chief justice has the power to set the size and composition of the panel hearing an appeal. She may use this power to make the court operate more efficiently, such as by ensuring the court is able to hear more cases than if all judges sit together. Alternatively, the chief justice may set panels that increase the probability of a particular result. We find evidence that chief justices use panels for both these purposes in some countries.

A judge is rooted in various relationships including with the other judges on a panel or on the court as a whole, and with other institutions such as the legislature. In Chapter 5 we look at whether these relationships influence how judges vote. We find that a judge does tend to respond differently depending on who else is with him on the panel deciding the appeal. However, we find at best mixed evidence that a judge is influenced by his position on the bench (either as a new judge hearing his first few terms of cases or, at the other extreme, as the chief justice) or by other branches of government.

Judges on high courts in general do not just have a set of appeals given to them and make a decision. To a greater or lesser extent the judges also choose the cases they hear. In Chapter 6 we discuss how the rules about how courts are designed influences the set of cases the court hears. Judges take in account various factors such as their overall workload and signals of the importance of the case. In addition, however, they also at times consider the potential outcome of the appeal, choosing cases to get a particular result by either overturning or affirming the decision below. Judges may also avoid hearing a case if there is a risk that a hearing will result in an outcome they do not want.

High courts then differ in the process for choosing who sits on the court, the size and composition of panels, and the cases the court hears. Once the case is before the court, a judge may also be influenced by the particular parties that appear in the appeal. Chapter 7 examines this influence. The government, for example, tends to be more successful in many cases than other parties. This success may be due, for example, to the government having more resources than other parties or being a repeat player in front of the court. Further, judges seem to at least be modestly influenced by interveners, who are not actually the parties to the appeal but seek to provide additional information to the judges about the implications of their decision. Judges appear to take into account to at least a limited extent the information provided by the interveners in some contexts, though the presence of interveners also appears connected to an increase in the probability of a judge dissenting.

Finally, in terms of design, we look at how judges are influenced not just by formal rules of how the court is to arrive at decisions but at norms of decision-making. In particular, in Chapter 8 we discuss the existence and strength of norms of consensus on different courts. Courts vary to a surprising extent in the magnitude and causes of disagreement amongst judges. The two most extreme cases in our sample are the US Supreme Court with over half of the cases having at least one dissent and the Indian Supreme Court where only about 5 percent of cases involve a dissent. We find evidence that, depending on the country, a judge is influenced in whether she dissents by policy differences with other judges and her own workload. However, a judge’s decision to dissent also appears related to the background norms of whether it is acceptable to dissent and the leadership of the chief justice and president of the court.

Chapter 9 provides our conclusion. As we have said, we do not attempt to define an optimal court. However, we argue that high court design influences how judges decide and therefore we need a better theory of institutional design and improved ability to tease out how and when design matters. The differences across courts are both important and interesting in terms of where they come from and their implications. They help us understand what may be necessary to improve high courts in particular countries. We cannot move toward better institutions without understanding how design features relate to each other and to the factors that underlie how judges decide. To date, considerable academic work has focused on studying courts in isolation without understanding the broader suite of design options and their implications.

With this book, we aim to begin the process of synthesizing, generalizing, and expanding upon the existing work so that our highest appellate courts can be increasingly appreciated and improved using insights from a comparative institutional perspective.

  • [1] Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009)[Sen, Idea].
  • [2] Lee Epstein, William M. Landes & Richard A. Posner, Behavior of Federal Judges: A Theoreticaland Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013)[Epstein, Landes & Posner, Behavior].
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