Institute of law

Nirma University

CE-III Assignment

Jurisprudence

Book Chapter Review

Overcoming law

Chapter 3- what do judges maximize?

Submitted To: Submitted By:

Prof. Anubhuti Dungdung Rakshita
Assistant Professor 21BAL128
Institute of law BALLB – B
Nirma University
The Honorable Richard A. Posner

Overcoming Law. United States of America, USA: Harvard University Press

1997. 109 pp. $17.95 (paper). ISBN: 0-674-64926-5

What do Judges Maximise?

RAKSHITA

21BAL128

Institute of Law, Nirma University

(1394 words)

In the times of 1997 when Hon’ble Richard Posner writes this book, there are conventional

methodologies and doubts regarding judicial functioning and the output that judiciary

produces. Overcoming law tries to analyse fundamentals that are at work behind the working

of judicial system and factors that affect working of judges and magistrates. He explores

economic aspects and incentives that might be correlated with the output that the Judicial

officials produce. In his chapter what do judges maximize? He has tried to assess various

components which might motivate the working of these officials. He has intelligently used

analogies such as art and philosophy and that of sports and talent and rules, to help

substantiate the economic and practical theory he has tried to put forth. He has also tried to

provide with an economic mathematical expression of factors that compose the output of a

judges. However, he has tried to explain the behaviour of judges at large, he did not fail to

recognise and appreciate the differences in behaviour of different classes of judges.

Therefore, the theory he tried to propose in his chapter, he strictly tried to apply it to federal

judges and not to those of Supreme Court or appellate judges.

Before drawing the outline of the motivation of federal judges of maximization of a

component over the other, Posner has very diligently tried to rule out inconsistencies by

providing background differences in different classes of judges and has also tried to clarify as

to why a same lens can’t be used to assess them. Posner, coming to the core idea of the

chapter has tried to elaborate upon factors which might be the motivation of judges to

maximize. His major indication is towards maximization of leisure. It can be seen throughout

that leisure has somewhat been treated as base element and all other variables are seen in its

relation. He has very smartly, tried to indicate that how different factors can lead to different

ways in which judges might try to reduce their judicial work. These factors can very clearly

give the reader an idea of psychological working of a federal judge and also help in

understanding the trends of judicial rulings.

Posner suggests that as popular as it is that judges are

compared with other bureaucrats, there lie significant

differences between them and that the judges shall be seen

as more of non-profit enterprises. He addresses the

apprehensions that this analogy might bring with it that

having a secure tenure and good salaries and no other form

of incentives reduces the motivation to produce justice and output. To this Posner has taken

into account various factors like reputation, respect, avoiding reversals and moreover, the

satisfaction that the “game” of judiciary gives them to play by the rules. He tried to explain

working nature of judges and their output through judicial utility function:
 populai
rty
prestig
voting
e
judicial
utility
avoidin function
g public
reversa interest
l
reputati
on

Explaining each of these factors, he tries to substantiate that how even thought judges might

have a secured tenure and fixed salaries and the scope of incentives and moonlight earning is

prohibited, judges still put in a certain degree of effort into judging cause these factors work

at core. They work to earn prestige and though after a certain level of input, its increase might

not give as much utility, but till that level, it works as a motivating factor. Same as with

voting. Even though vote of ordinary judges might not in additional effect bring out that

much difference but the value attached with it gives a sense of distinguishment and adds to

the overall prestige of their judicial output. In analysing what judges try to maximise, Posner

suggests that district judges avoid reversing precedents due to many reasons such as:

i. To maximise leisure as reversal can’t be given without analysing and researching

about the precedent.

ii. To avoid critique of colleagues

iii. To avoid setting a precedent for not following a precedent.

Posner has therefore expressed, including all these factors in form an equation,

U= U( tj, tl, I, R, O)

Wherein tl+tj = 24. Posner takes time in terms of time devoted to judging and leisure I being

pecuniary income, R being reputation and O being other factors. After considering all these
factors, the chapter provides a detailed view as in why and how the judges would want to

maximise any of these factors at cost of other and what motivation and benefit lies behind it.

Answering to the apprehensions which might rise in reader’s mind at this point in the chapter

that why would judges not be biased, Posner has provided an acceptable if not flawless

explanation to it. He argues on the assumption that judges favouring their knows or being

biased isn’t implausible to expect since they too are ordinary people. But he suggests that

maximum times such benefits provided does worse than good to them as it might

compromise their reputation and prestige and therefore the motivation provided by those

factors outdo the benefit which such shortcut might provide and hence it to a certain extent

ensures that judges play fairly. Another argument that he presents is that like an artist or a

sports player, judging is also a field which is governed by rules. The pleasure is found in

these fields when abiding by rules. therefore, compromising rules would directly affect the

pleasure that the judges would get from judging. Here again, Posner is working on

assumption that all those who chose to become judges are there because they love judging

and not otherwise. The arguments presented are intertwined and might sound confusing at

first but when dissected, a reader can clearly identify as to how the author has tried to peel of

and deal with multiple layers of judging one layer at a time.

The arguments present in the chapter are no doubt creative and to some extent convincing

too. It can help in understanding the motivations behind the working of judicial officials and

also the rationale or lack of one in certain cases in judgments. the author has tried to explain

the judicial output through economic approach which can’t be overlooked. It includes social

as well as professional and mathematical aspects which together explains a certain level

credibility behind the idea that has been proposed. However, a lot factors that have been

suggested work strictly on assumptions which can’t be proved quantitative or qualitatively.

At a point, author himself has indicated that there is no strong and more credible way of
deciding working of judges and their output except the ques and backlog of cases present in

courts. Therefore, as convincing as the author’s idea might be, lack of premise on which it is

presented makes its theories prone to being inconsistent with realities. Ex. If a judge is not

into the game of judging for he loves it but just cause it provides incentives, Posner’s

argument that his pleasure would be diminished, will fail to have applicability and thus his

theory won’t hold accuracy in deciding and justifying his position and output in the judicial

system. However, keeping aside this one thing, the way Posner has approached the idea and

has analysed the topic of maximisation by judges is a different and revolutionary one.

However much difficult it might be to prove in reality to its accuracy, it is a possible way of

expression of all those factors which might not have been possible to be put in terms of

inclusive equation to come out with a single expression which highlighted the importance of

all of them.

As ahead of time the idea of fundamental economic approach to law as it might have seemed

in 1997, it is one of the most effective and creative of understanding the judicial working and

efficiency through a lens deferent than law. This idea that Overcoming law presents is indeed

revolutionary and can prove to be a firm ground of research and proving legal attitudes in

terms of economics. Posner has worked and proposed many ideas in Overcoming law,

including pragmatism, empirical nature of law, schools of law etc and this chapter is one such

revolutionary idea which tries to look at legal field and its attitude through economic lens. It

is therefore a good resource for people who might want to analyse abstract legal practices and

behaviours in terms of incentive that are more tangible and monetary and economic in nature.