Ilya Somin (George Mason University) has posted Rational Judicial Ignorance on SSRN. Here is the abstract:
My prior work has focused on the implications of rational voter ignorance for legal theory. One of the biggest problems with modern democracy is that most of the public is usually ignorant of politics and government. Such political ignorance is best mitigated and its effects lessened by decentralizing and limiting government. In this essay, I extend this analysis to the analogous issues created by rational judicial ignorance.
Judges make rational decisions that result in judicial ignorance of both law and fact in the cases they decide. Generalist judges are rationally ignorant of the law in almost all of the cases they decide, because of the high opportunity costs imposed by in-depth legal research and the low probability that their prior experience provides them with in-depth knowledge of the law in any particular case. Law clerks, the traditional solution to this problem, are unlikely to fill the gaps, because they are likewise rationally ignorant of the law. A rational law student will spend almost no time mastering legal doctrine, given the law-school reward system which creates payoffs for exam answers the parrot the political ideology of the grader and disincentivizes doctrinal analysis. Moreover, rational law students will devote almost no time to courses in legal research and writing--given the extremely low payoffs (especially at elite institutions where such courses are almost universally graded on a pass/fail basis with failing grades rare or nonexistent). Appellate judges are especially unlikely to acquire knowledge of the facts in the cases they decide, because of the enormous time commitment required for mastery of trial records and/or discovery materials.
Given rational judicial ignorance of facts and law, there are at least three possible strategies for improving decision making by judges. The first strategy is institutional. An example of this strategy has been proposed by Adrian Vermeule and Cass Sunstein who propose simplistic textualism as the best strategy for producing reliable decisions by judges who rational decide not to do the work required by more complex decision procedures. The second strategy is covert randomization. Although public randomization strategies (coin flipping in open court) might impose externalities (delegitimation costs), covert strategies (coin flipping in chambers) provide impartial decision making in the face of profound rational ignorance. The article concludes by advocating for a third strategy, the privatization of judging: private firms would compete to provide judges with knowledge of the law and the adequate incentives to acquire knowledge of the facts as well. Although wealth effects will result in the allocation of high-quality judicial resources to well-resourced parties and high-stakes disputes, this outcome will in most cases result in an efficient allocation of a scarce resource.
Recommended.
