This Comment argues that economic analysis provides an inadequate account of judicial behavior because economic models are incompatible with a jurisprudence that recognizes basic rule-of-law values. Whereas standard economic theory is committed to thinking of a judge as exclusively self-interested, two fundamental problems with this conception exist. First, as application of Amariya Sen's critique of the behavioral foundations of economic theory to judicial behavior reveals, the decision of a judge who meets her judicial obligations may fail to maximize her self-interest. Second, even if the self-interest-maximizing decision coincides with the behavior that her judicial obligations require; economic models still fail to provide an accurate explanation of judicial decision making. This inability is attributable to economic theory's failure to recognize the distinguishing feature of judicial behavior--what H.L.A. Hart compellingly describes as relating to a rule from the internal point of view. In ËOvercoming Law" Richard Posner anticipates this Comment's challenge to the economic analysis of judicial behavior, but significant problems exist with his attempt to meet it. Because Posner assumes away the problem of obligation and reduces judicial motivation to self-interest, his method neglects Hart's concern with the internal aspect of obligatory social rules. It is thus incompatible at the theoretical level with the liberal ideal of the rule of law. Additionally, Posner's approach is anti-empirical by methodological necessity. Thus, his assertions notwithstanding, his theory of judicial behavior is no more empirically grounded than the liberal jurisprudence whose conception of the judge he derides. Nevertheless, this reality does not absolve adherents of liberal legal philosophy from the responsibility of empirically testing their own understandings of judicial behavior. Rather, researchers need to test empirically both Hart's and Posner`s accounts of why judges follow institutional rules. In particular, in addition to observing judicial behavior; investigators need to persuade judges to introspect about and communicate their experiences of themselves and each other on the bench.
Neil S. Siegel, Sen and the Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior, 87 California Law Review 1581-1608 (1999)