Directing Retribution: On the Political Control of Lower Court Judges

The sentencing decisions of trial judges are constrained bystatutory limits imposed by legislatures. At the same time,judges in many states face periodic review, often by the electorate.We develop a model in which the effects of these features ofa judge's political landscape on judicial behavior interact.The model yields several intriguing results: First, if legislatorscare about the proportionality of punishment, judicial discretionincreases with their punitiveness. Second, voters are limitedby two factors in their ability to make inferences about judicialpreferences based on observed sentences: the extent to whichjudges are willing to pander to retain office and the rangeof judicial discretion mandated by the legislature. Finally,legislators can sometimes manipulate judicial discretion toaid sufficiently like-minded voters in their efforts to replaceideologically dissimilar judges.     

Rules versus norms: How formal and informal institutions shape judicial sentencing cycles

Existing research on electoral sentencing cycles consistently finds that elected judges levy longer sentences when they are up for re-election. However, this research finding had previously drawn exclusively on data from four states. Using newly collected sentencing data on seven additional states, we find substantial, and previously un-noted, heterogeneity in the strength of sentencing cycles. This heterogeneity appears to be explained by cross-state differences in informal norm of whether incumbent judges get challenged in judicial elections. We show that variation is explain by the baseline probability of having a challenger and the number of donations per electoral race. That variation, in turn, is not well explained by observable formal electoral institutions.     

Strategic Judging Under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence

We present a positive political theory of criminal sentencingand test it using data from the U.S. Sentencing Commission.Under the U.S. Sentencing Guidelines, judges can use "offense-leveladjustments" (fact-based decision making) to lengthen or shortenthe Guidelines' presumptive sentences. Judges also can use "departures"from the Guidelines (law-based decision making) to lengthenor shorten sentences. In general, departures are reviewed morestrictly than adjustments by circuit (appeals) courts. Our theorypredicts that a sentencing judge politically aligned with thecircuit court will be more likely to alter sentences throughsentencing departures than a judge not so aligned with the circuit;by contrast, our theory predicts that judges can more freelyuse fact-oriented adjustments to alter sentences, regardlessof the circuit court's sentencing policy preferences. Our analysisof federal sentencing data largely supports the theory's predictionsregarding the use of adjustments and departures and the impactof political alignment between higher courts and sentencingjudges.     

CRIMINAL SENTENCING GUIDELINES AND JUDICIAL DISCRETION

This article studies the institutional structure of criminal sentencing, focusing on the interaction between legislatures, which set sentencing ranges ex ante, and judges, who choose actual sentences from within those ranges ex post. The key question concerns the extent to which judges are afforded discretion in sentencing, given the possibly divergent interests of legislatures and judges regarding the social function of criminal punishment. The ongoing debate over federal sentencing guidelines provides a context for discussing the policy implications of the model. ( JEL K14, K42)     

Managing judges mathematically: an empirical study of the medical malpractice litigations in Shanghai

The post-Mao China has been increasingly managed mathematically, not the least in its judicial system. In this paper, I looked into some of the mathematical indicators used to judge the performance of judges in this nation, and ascertained their effects on the judicial decisions on medical malpractices in Shanghai. The findings of this paper support the previous study that qualitatively identified the judicial responses to such a quantified evaluation system. Underlying the effect of performance indicators is the Chinese judiciary’s bending toward populist pressure. Essentially, therefore, this paper serves to place in perspective the judicial populism well documented in the latest literature on Chinese judiciary. At the same time, however, my study also endorses the theory on courts’ reluctance to exercise discretion in a hierarchical judicial system. Thus, as hinted by the data, the actual behaviors of Chinese judges might be complex under a combination of institutional constraints embodying policy preferences of political leaders as well as structural characteristics of the judiciary.     

算法合谋的反垄断规制及工具创新研究

在数字经济领域,数字商务企业采用算法定价会明显提高合谋的可能性和可实施性,具有较大的价格合谋风险,因而成为反垄断法关注的重点。学理上,尚待明确的问题有:算法定价促进合谋的内在机理和类型化机制;如何创新反垄断执法体制以有效规制自主学习算法;在反垄断事后执法无效情况下,是否需要以及如何实行事前规制等。研究表明:算法合谋的反垄断规制宜坚持分类治理原则,采取事后反垄断禁止为主并辅之以事前规制的政策组合,反垄断政策工具创新应主要针对自主学习算法合谋。算法合谋反垄断规制政策需重新界定构成非法合谋的"协议"要件,明确当事企业的主体责任,重在采取以"软执法"为主的反垄断执法体制。事前规制政策应坚持"基于设计来遵守法律"的原则,强化算法审查机制和审查能力建设,并将提升算法透明度和可问责性作为重点。     

法官异地交流与司法效率-来自高院院长的经验证据

在理论上,法官异地交流是把"双刃剑",它对司法效率的提高同时具有促增和抑制两种效应,因而,定量识别法官异地交流对司法效率的净影响就具有重要意义。本文以2008年中国各省高级人民法院院长异地交流轮岗活动为样本,采用双重差分法系统评估了法官异地交流对司法效率的净影响。研究发现,中国的法官异地交流显著地提高了以结案率来度量的司法效率,由异地交流来的法官任院长的地区,当地的结案率在平均意义上要比其他地区的结案率高出2个百分点左右;但是,法官异地交流对司法效率的正向影响存在1年左右的政策时滞。除此之外,法官的籍贯、学历、年龄、任期等个人特征也显著地影响了当地的司法效率。     

Legal tradition and antitrust effectiveness

This article uses cross-country data to empirically investigate through which channel legal origin can influence antitrust effectiveness. The evidence shows that the adaptability channel (legal flexibility) is more important for explaining antitrust effectiveness than the political channel (authority independence). The evidence also suggests that countries in which a judicial decision is a source of law will provide more legal flexibility and will adapt more easily to changing economic circumstances. They will therefore also have better enforcement of antitrust rules. On the other hand, a legal tradition that takes no formal notice of legal precedent will make the competition environment much less predictable. To the extent that these findings are true, one would expect competition agencies in Common law countries to perform better than those in Civil law countries.     

An empirical analysis of constitutional review voting in the polish constitutional tribunal, 2003–2014

Different theories have been developed, mainly in the context of the United States, to explain judicial decision-making. In this respect, there is an important ongoing debate over whether judges are guided by the law or by personal ideology. The analysis of the decision-making in the Polish Constitutional Tribunal seems to support the existence of some party alignment. It is to say that judicial behavior is influenced by the ideology, either because judges’ preferences coincide with the interests of a specific party or because the judges are incentivized to show their loyalty to a party. Party alignment exists but subject to institutional influences. These results are in line with previous findings for other constitutional courts in Europe.     

THE IMPACT OF ANTITRUST GUIDELINES ON BUSINESS

The dual antitrust goals of predictable law enforcement and accurate decisions in individual cases have been in conflict for decades. There are three dimensions to this conflict. First, there may be insufficient information on how the courts and enforcement agencies interpret the antitrust statutes. Second, the enforcement agencies may not use consistent standards to evaluate actual and potential antitrust cases. Third, antitrust guidelines may differ significantly from case law.
Unfortunately, attempts to improve one dimension of antitrust policy generally create conflicts elsewhere. Thus, the search for better antitrust decision making in individual cases has made antitrust counseling more complex and expensive. Over time, standards have evolved at different rates at the Department of Justice (DOJ), the Federal Trade Commission (FTC), and the courts, and inconsistencies among these three decision-making bodies have further complicated the task of antitrust counseling. In this environment, improved and updated information on antitrust standards can potentially be very valuable to the business community.     

The impact of the judiciary on entrepreneurship: Evaluation of Pakistan's “Access to Justice Programme”

In 2002, the Pakistani government implemented a judicial reform that cost $350 million or 0.1% of Pakistan's 2002 GDP. This reform did not involve increased incentives for judges to improve efficiency but merely provided them with more training. Nonetheless, the reform had dramatic effects on judicial efficiency and consequently on entrepreneurship: judges disposed of a quarter more cases and entry rate of new firms increased by half due to the reform. Using data from the World Bank Group Entrepreneurship Database, our estimates suggest that this translates into an increase of Pakistan's GDP by 0.5%.     

Are Larger Merger Synergies Bad News for Consumers? Endogenous Post‐Merger Internal Organization

In this paper, we endogenize the post‐merger internal organization of firms, considering two alternative structures: multidivisional, in which separate divisions are kept, and traditional, with cost synergies. We analyze when each structure occurs in equilibrium and how it affects welfare. We show that higher synergies do not necessarily lead to higher consumer surplus: firms can opt for a merger type that does not increase consumer surplus as much as the one that would occur with lower synergies. This highlights the importance of antitrust authorities basing their decisions not just on the magnitude of eventual synergies but also on the post‐merger organizational form.     

Law, legislation, and local minima: Solving a problem in Hayek��s theory of common law judging, with historical examples

Friedrich Hayek??s Law, Legislation, and Liberty noted a problem in the common law system: Sometimes, following judicial precedent would lead to unforeseen bad outcomes over time. No judge can anticipate all possible implications of a precedent-setting decision, and sometimes later judges, bound by precedent, will be forced despite themselves to elaborate the law in ever more inefficient or unjust ways. Hayek proposed that one role of the legislator was to correct such ??dead ends?? in the common law. This paper proposes that judges working within the constraints of the common law and given only the tools Hayek himself allowed them are capable of escaping such binds on their own. It uses historical examples from the era of coverture to support this claim. Not only were judges willing to identify exceptions to coverture, these exceptions helped pave the way for coverture??s eventual abolition. This process is examined and found to be otherwise consonant with Hayek??s larger theory of the common law as a rule-finding process.     

The Prosecution of Public Figures and the Separation of Powers. Confusion within the Executive Branch – A Conceptual Framework

Criminal investigation and prosecution of politicians, top civil servants and other public figures are topics frequently discussed in the media. The nature of the investigating or prosecuting authority varies between countries – from the general public prosecutor, through magistrates to independent counsels or parliamentary investigation commissions. This paper analyzes the role and status of public prosecutors within the separation of powers-concept. Prosecutors are usually part of the executive and not the judicial branch, which implies that they do not enjoy the same degree of independence as judges, and are ultimately subordinated to the directives of the minister of justice or the government. Conflicts of interest may hence arise if members of government can use the criminal process for their own or partisan interests. The incentives of public prosecutors in different jurisdictions are compared.     

Quality of judicial institutions,crimes, misdemeanors,and dishonesty

We investigate the extent to which quality of judicial institutions has an impact on individuals’ propensity for criminal and dishonest behavior and on their views regarding the acceptability of dishonesty and law-breaking. We use micro data on residents of 25 European countries and employ alternative measures of judicial quality as perceived by the residents of these countries. As an instrument for judicial quality we employ the procedures with which prosecutors and judges are appointed to their posts in each country. As alternative instruments, we employ an index of de jure institutional quality as well as its components, which provide similar results. The findings show that an increase in the perception of the quality of judicial institutions, such as an improvement in judicial independence or the impartiality of the courts, has a deterrent effect on dishonest and criminal acts. A higher perceived quality of the judicial system also makes individuals less likely to find acceptable a variety of dishonest and illicit behaviors, suggesting that institutions help shape the beliefs of the society. We obtain the same results when we analyze the sample of immigrants, whose cultural attributes should be (more) related to their countries of origin, rather than their countries of residence, and thus should be arguably uncorrelated with the factors that can impact the instrument. We show that people’s beliefs in the importance of the family, in the fairness of others, and the importance of being rich are not impacted by judicial quality, suggesting that judicial quality is not a blanket representation of underlying cultural norms and beliefs in the society.     

A COST-BENEFIT ANALYSIS OF ENLARGING THE JAPANESE JUDICIAL SYSTEM

This article presents a cost-benefit analysis of enlarging the Japanese judicial system, especially the civil section of District Courts (CSDC). Constructing a simple econometric model of CSDC, the effects of increase of judges on the supply of judicial services and the trial time are analyzed. Then a cost and benefit calculation is done. The basic assumption is that the total benefit of the judicial system is the aggregate of monetary value of a suit (MVS). The main conclusions are: (1) The demand elasticity for a civil trial with respect to trial time is – 1.3 to about – 1.4 , and its income elasticity is 0.95. (2) The supply of civil trials is proportional to the number of judges. (3) Ten-percent increase of judges will shorten the average trial time by 5.2%. (4) The net benefit of CSDC is estimated to be ¥466 billion per year if the annual discount rate is 10%. (5) Judging from the demand and supply relation, if CSDC is doubled, the net increase of total benefit per year will be ¥543 billion. (6) If the benefit of the external effect on lawyers' market is added, the total net benefit will reach almost ¥1 trillion, which is 0.22% of gross domestic product.     

Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making

This article assesses how the institutional context of decisionmaking on three-judge panels of the federal Court of Appealsaffects the impact that gender and race have on judicial decisions.Our central question is whether and how racial minority andwomen judges influence legal policy on issues thought to beof particular concern to women and minorities when serving onappellate panels which decide cases by majority rule. Properanalysis of this question requires investigating whether womenand minority judges influence the decisions of other panel members.We find that the norm of unanimity on panels grants women influenceover outcomes even when they are outnumbered on a panel.     

Strategic instruments: legal structure and political games in administrative law

This article presents models of strategic behavior by agenciesand courts where the ability to manipulate the instruments ofdecision making, rather than merely selecting policy choices,allows actors to insulate their policy choices from higher levelreview. The theory is based on the notion that decision instruments(for example, rulemaking and adjudication for agencies, statutoryinterpretation and reasoning process review for courts) posedifferential costs and payoffs for both the initiating and reviewingactors, each of whom have resource constraints. Because theinitiating actor has the choice among instruments to make adecision (and to which a higher level reviewing actor is tied),the initiating actor can manipulate decision costs in a strategicfashion (choosing high-cost instruments to discourage higherlevel review, in particular). This article adds new insightinto how judges and agencies engage in strategic decision making.     

The United States’ higher education antitrust exemption and college enrollment

This study examines the effect of the higher education antitrust exemption on enrollment of financial aid applicants at highly selective private colleges. The antitrust exemption, used since 2002, was extended to 2022 by the U.S. Congress in 2015, allowing colleges with need-blind admission policy to use common standards without discussing or comparing individual awards. Our findings, which are contrary to earlier studies, suggest that the likelihood of enrollment at the colleges implementing the antitrust exemption increased compared to those that did not. Concerns about the adverse effect of the exemption on enrollment, therefore, seems to be unwarranted. Moreover, the common standards used by need-blind colleges do not seem to increase college access for low income students. These findings can be useful to policy makers who soon have to consider extending the exception beyond 2022.