Trial by Market: A Thought Experiment

Abstract

This Article considers the possibility of providing incentives to judges to decide cases in the same way that an appellate panel would decide them. Random selection of a proportion of cases for retrial could be used to encourage judges to place aside their preferences in deference to the perceived preferences of a majority of judges. Providing such incentives to judges may reduce the need for alternative approaches to reducing judicial discretion, such as substantive law based on rules rather than on discretion. An information market similarly could be used to accomplish the task of adjudication, with some cases randomly selected for traditional adjudication to discipline the information market participants. Such an approach may be more cost-efficient than provision of monetary incentives to judges where information is widely dispersed, or where it is impractical for the government to hire enough judges to handle a large group of cases. Advantages and disadvantages of these approaches are discussed.

JEL Classification: K41