The Law and Policy of Judicial Retirement: An Empirical Study

55 Pages Posted: 27 Mar 2011 Last revised: 25 Dec 2014

Stephen J. Choi

New York University School of Law

G. Mitu Gulati

Duke University School of Law

Eric A. Posner

University of Chicago - Law School

Date Written: March 22, 2011

Abstract

Lifetime tenure maximizes judicial independence by shielding judges from political pressures, but it creates problems of its own. Judges with independence may implement their political preferences. Judges may remain in office after their abilities degrade with age. The U.S. federal system addresses these problems in an indirect way. When judges’ pensions vest, they receive a full salary regardless of whether they work. Judges can retire, receive their pension, and obtain paying work elsewhere. This limits some of the harmful effects of judicial independence by encouraging judges to vacate their offices when they become old, and by causing judges who lack talent, and therefore find their work burdensome, to leave office. We test the benefits and costs of this system using a database of federal district judges. We find that the vesting system causes judges to retire as expected, but that higher-quality and wealthier judges are less sensitive to the financial incentives of the system; and that some judges appear to time retirement so that the president will appoint likeminded judges.

Keywords: courts, judges, pension, judicial retirement, rule of 80, judge incentives

JEL Classification: K41

Suggested Citation

Choi, Stephen J. and Gulati, G. Mitu and Posner, Eric A., The Law and Policy of Judicial Retirement: An Empirical Study (March 22, 2011). NYU Law and Economics Research Paper No. 11-12; NYU School of Law, Public Law Research Paper No. 11-24; U of Chicago Institute for Law & Economics Olin Research Paper No. 550. Available at SSRN: https://ssrn.com/abstract=1792422 or http://dx.doi.org/10.2139/ssrn.1792422

Stephen J. Choi

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Gaurang Mitu Gulati

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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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