Judicial Incentives: An Immodest ProposalAuthor(s): David EpsteinSource: Litigation, Vol. 3, No. 1, PROVING AND DISPUTING DAMAGES (Fall 1976), pp. 3-4Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758282 .

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Ir inl Balloon

Judicial Incentives:

An Immodest Proposal One way to improve trial judges' per? formance that has not been tried or even discussed?the incentive system

?has long ago proved its worth in other fields. Because differences in

judges' performance can be mea?

sured, an incentive system should be set up to recognize the best judges, goad the mediocre ones to improve, and expose the unqualified.

Incentive systems exist in many areas of life and are generally re?

garded as effective. Grades, stipends, and scholarships are widely used as

encouragement in academic life. Fame and fortune may reward the winners of athletic competitions. Financial incentives?profits, tax deductions, and commissions?in?

fluence conduct in every aspect of trade and commerce.

Now, all judges are treated as

equals, and each is entitled to the same pay and perquisites of office? size of staff, chambers, courtrooms.

What distinctions exist are usually made on the basis of seniority.

Myth tells us that taking the oath of office transforms a human being into a judge, an awesome and powerful arbiter of human destinies and dis?

penser of justice who is entitled to our

respect and protection. "To many minds the judge is the law," Justice Tom Clark once noted. The assump? tion that this transformation is equal? ly successful for all appointees has

many consequences. The broad dis? cretion trial judges have in operating their courts, making findings of fact, deciding credibility of witnesses, and

adjudging disputes presupposes a

relatively high level of competence. The assignment of cases on a random basis also is predicated on this notion of judicial equality. The occasional deliberate assignment, however, of

by David Epstein an especially complex or publicized case to a talented member of the bench is an effort by the court to avoid

public embarrassment and a confes? sion of disparity in talent.

Despite the myths, judicial office does not transform all officeholders

beneficially, nor are all judges equal. One method of upgrading the judi? ciary has been the use of nonpartisan selection committees to measure can?

didates' qualifications along with a

system to remove incompetents. Even so, judges whose political support outweighs their qualifications will be

appointed, and their performance may not be so poor as to justify re? moval or impeachment.

Even the most promising ap? pointees sometimes fail to fulfill their promise. Talented judges are

Mr. Epstein is a graduate of Harvard Law

School, a member of the District of Columbia

Bar, and a partner in the Washington firm of Berry, Epstein, and Sandstrom.

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adversely affected by power, syco? phancy, and ennui. They become

overbearing, rude, and lazy, making demands and issuing rulings incon? sistent with good judicial behavior.

The supervision of a judge's con? duct by his or her colleagues is vir?

tually nonexistent. Some believe this absence of supervision is a desirable

guarantee of an independent judi? ciary (see, e.g., the dissenting opin? ions of Justices Douglas and Black in Chandler v. Judicial Council of the Tenth Circuit of U. S. , 398 U. S. 74, 129-143 (1970)). The notion of

having judicial behavior monitored

by fellow judges, whether trial or ap? pellate judges, is anathema to many on the bench. Thus, a judge may seek the help of a more experienced fellow but he is not required to do so. A help? ful colleague may also pass along un? desirable habits.

Appellate review is of limited use? fulness here, because only a fraction of inappropriate judicial conduct is

brought to an appellate court. Cost or

litigative weariness may dissuade a

party from seeking further relief. Much inappropriate conduct is not

susceptible to review, even when the outcome of the litigation is directly affected. A judge's tone of voice, sneers, or petty and impetuous con?

duct are often not correctible. Basic

misconceptions about the issues of the case can be masked by a judge who issues orders without giving reasons for his conclusions.

As one commentator has noted, "Every trial lawyer knows from per? sonal and often bitter experience that there are few more tyrannical figures than an autocratic trial

judge. . . Glaring down from their elevated perches, insulting, abrupt, rude, sarcastic, patronizing, intim

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idating, vindictive, insisting on not

merely respect but almost abject servility?such judges are frequently encountered in American trial courts. . ." H. Schwartz, Judges as

Tyrants, 7 Crim. L. Bull 129-130. The appellate court may defer to

the trial court and what is believed to be its sound exercise of discretion. When appellate courts do chastise trial judges for their conduct, little

long-term improvement is noted. The trial judge often self-righteously con? cludes that he is the victim of ill founded punitive and embarrassing statements. Exhortations for judges to work harder and do better are also

notably unsuccessful. Something more effective is needed.

A judicial incentive program should attempt to develop good judges, reinforce the qualities that make a judge good and minimize

qualities that detract. The problem is, first, to determine the qualities of a

good judge and, second, to set up the incentive system. Recognizing a

good judge may surpass the biblical

problem of determining a true pro? phet. The test, according to Deute? ronomy 19:6, is that "the words of a true prophet come true, while those of a false prophet do not come true." How do we judge the prophet's words at the time of the forecast?

A good trial judge conducts tem?

perate and efficient trials, works hard, understands the law and its relation to human affairs, maintains the integrity of the office, and reaches fair judgments. Others might say a

good judge should have a particular judicial or political philosophy about civil liberties, property rights, or social and economic issues.

Who is to judge the judges? Ironically, the most subjective,

self-seeking, and partisan of all ve? hicles?the adversary system?pro? vides a novel but objective way to evaluate judges: The adversary coun? sel should decide together who should

preside at their trial. Labor arbitration has effectively

operated on this principle of natural selection and with it the selection of the most fit. In selecting an arbitra? tor, each party recognizes that it cannot have an individual with a

pronounced favorable bias, because

opposing counsel will exercise a veto. The parties necessarily agree only

upon an arbitrator who is deemed fair, intelligent, and impartial, as well as knowledgeable about the issues in the case.

The award and the arbitrator's

opinon later are not judged solely by a win or loss, but also by the arbitra? tor's identification and treatment of the issues. An arbitrator who seeks to curry favor with both parties by is?

suing awards that compromise the

major issues?or give each half a loaf ?will quickly fall into disrepute. Adversaries prefer to win or lose rather than have basic issues mud? died. If they had wanted or been able to compromise, they would have done so before arbitration.

Thus, in civil litigation the adver?

sary parties should be allowed to select their judge, if they can agree. Civil litigation, after all, basically involves private disputes, and so?

ciety's principal interest is to bring these disputes to a resolution in a

manner that is recognized as fair and

just. (This proposal is not suitable for criminal litigation, where the

prosecution is not a true adversary and abstract societal interests are involved.)

At the least, the adversary parties will select a judge whose qualities are

especially well-suited to their case. In

complex matters the intellectual

capabilities of a judge might out?

weigh his lack of an equable tempera? ment. A judge seen as more humane

might be chosen to resolve child cus?

tody disputes. A judge who can en?

courage settlements might be selected

by parties who wish to settle but hesitate to make their cases appear weak by suggesting settlement.

Objective evaluation of judicial performance is very difficult at best. Partisan evaluation is easy. The ad?

versary parties will select the good judges, because the adversary process will, by operation, insure that the selection of a judge by each party will be designed to further the best in? terests of that party and, in the end, both parties.

Naturally, certain judges will be

preferred and others ignored. Those selected will have the respect of the bar. The fact that some judges will be selected frequently, others less so, and some not at all will underscore the judicial qualities sought by adver? saries. Because each wants to win, the

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two adversaries will have eliminated

judges who are obviously biased, ir? rational, temperamental, foolish or

ignorant. The rarely selected judges will be?

gin to understand that a change in conduct might result in a greater like? lihood of selection and will change their ways accordingly. Their failure to receive cases by agreement will be evidence of poor standing. Perhaps the disparity in receiving appoint?

ments will encourage improvement in their behavior. If not, then publicity about the selection results will.

If the adversaries cannot agree on a judge, then the appointment of one will occur in the normal random man? ner. As a further refinement, each

judge should be allowed to have a maximum of 60 percent of his case? load determined by the choice of

adversary parties. The remaining 40

percent of the caseload would be de? cided by random appointment. Some

judges will, of course, fill their 60

percent caseload easily, others will fill their caseloads only by random ap? pointment.

When the best judges are too busy to accept cases by agreement of coun?

sel, the adversaries must decide whether to accept a mediocre judge by agreement or await random ap? pointment on the slim chance of

receiving one of the better judges. The fact of each judge's selection?

taking into account frequency, com?

plexity of matters handled, and time

required to process complex cases? can be given a value in points for

recognition and merit. Points will be, at the least, a source of pride. Credits could be the basis for deciding which

judge has first choice for the next available chambers and additional law clerks or secretaries.

Higher salary for these now

recognized good judges will also be

possible and workable. If all judges receive $40,000 regardless of merit, allowing the oft-selected judges to receive up to $10,000 or $20,000 more a year would, I think, be an incentive for the other judges to improve.

Traditionalists will argue that such an incentive system will demean the

judicial office and lessen respect for the bench. However, the simple answer is that bowing, scraping and hushed reverence have not resulted in a highly regarded judiciary.

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