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http://ssrn.com/abstract=1082055
 
 

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Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform


Eric A. Posner


University of Chicago - Law School

January 1, 2008

U of Chicago Law & Economics, Olin Working Paper No. 377
U of Chicago, Public Law Working Paper No. 195

Abstract:     
Recent empirical scholarship that shows that judges decide cases in a manner that is consistent with their political biases has motivated a stream of proposals for reform, including judicial term limits, limitations on judicial review of statutes and agency actions, revision of the judicial appointments process, and mandatory mixed party representation on judicial panels. However, these proposals incorrectly assume that judicial bias is necessarily harmful, and do not fully consider the costs to other values even when reduction of judicial bias is justified. To evaluate proposals for reform, one needs a theory of judicial review, one that explains how bias and other characteristics of judicial behavior result in socially good or bad outcomes. This paper supplies such a theory, drawing on rational-choice accounts of the role of the judiciary in the legislative process. It argues that judicial bias is not harmful in a broad range of circumstances, and that the merits of the reform proposals depend on many factors, including, among others, the degree of supermajoritarianism of the legislative process, the magnitude of legislative bargaining costs, judicial competence, and the extent to which the judicial appointments process and party competition result in an ideologically diverse judiciary.

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Date posted: January 10, 2008  

Suggested Citation

Posner, Eric A., Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform (January 1, 2008). U of Chicago Law & Economics, Olin Working Paper No. 377; U of Chicago, Public Law Working Paper No. 195. Available at SSRN: http://ssrn.com/abstract=1082055 or http://dx.doi.org/10.2139/ssrn.1082055

Contact Information

Eric A. Posner (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)
HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/
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