Justice Without Romance. The History of the Economic Analyses of Judges Behavior – 1960–1993

Journal of the History of Economic Thought, Forthcoming.

29 Pages Posted: 25 Mar 2020

See all articles by Alain Marciano

Alain Marciano

Université de Montpellier; Université Montpellier I - Montpellier Recherche en Economie (Montpellier Research in Economics) MRE

Alessandro Melcarne

Université Paris Ouest - Nanterre, La Défense

Giovanni Battista Ramello

University of Esatern Piedmont Law School

Date Written: February 28, 2020

Abstract

Richard Posner's “What Do Judges and Justices Maximize?” (1993a) is not, as usually believed, the first analysis of judges’ behaviors made by using the assumption that judges are rational and maximize a utility function. It arrived at the end of a rather long process. This paper recounts the history of this process, from the “birth” of law and economics in the 1960s to 1993. We show that economic analyses of judge behavior were introduced in the early 1970s under the pen of Posner. At that time, rationality was not modeled in terms of utility maximization. Utility maximization came later. We also show that rationality and incentives were introduced to explain the efficiency of Common Law. A controversy then took place that led Posner, and other economists, to postpone their analysis of judicial behavior until the 1990s. By then, the situation had changed. New and conclusive evidence of judges’ utility maximizing behavior demanded for a general theory to be expressed. In addition, the context was favorable to Chicago economists. It was time for Posner to publish his article.

Keywords: Judges, Judicial decision making, Rationality, Utility Maximization, Self-interest, Efficiency, Common Law, Posner

JEL Classification: K40, B 29, B31

Suggested Citation

Marciano, Alain and Melcarne, Alessandro and Ramello, Giovanni Battista, Justice Without Romance. The History of the Economic Analyses of Judges Behavior – 1960–1993 (February 28, 2020). Journal of the History of Economic Thought, Forthcoming.. Available at SSRN: https://ssrn.com/abstract=3545906 or http://dx.doi.org/10.2139/ssrn.3545906

Alain Marciano (Contact Author)

Université de Montpellier ( email )

Avenue Raymond Dugrand, CS 79606
Montpellier Cedex 1, F-34000
France

Université Montpellier I - Montpellier Recherche en Economie (Montpellier Research in Economics) MRE ( email )

Montpellier
France

Alessandro Melcarne

Université Paris Ouest - Nanterre, La Défense

200 Avenue de la République
Nanterre, Hauts de Seine 92000
France

Giovanni Battista Ramello

University of Esatern Piedmont Law School ( email )

Italy

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