November 29, 2011
Washburn Law Journal Symposium--Publication Opportunity
Sheppard on Decreasing Judicial Resources
Brian Sheppard (Seton Hall University School of Law) has posted Judging Under Pressure: The Relationship Between Decreasing Judicial Resources and Legal Constraint to SSRN.
The long-running debate about whether judges have adequate resources has begun to boil. State and federal legislatures are slashing court budgets, with many courts receiving up to 20 percent reductions. In recent years, judges have been resigning or retiring in droves. The remaining judicial vacancies are often left unfilled. Those judges that remain will be forced to spend considerably less time on each case.
In response to this impending crisis, scholars have just begun systematically and empirically to consider how resource limitation affects judging. These studies are of vital importance, not only because they are so topical, but also because they have found evidence of a potential link between the amount of resources that appellate judges have and the likelihood that they will be deferential to the lower courts or to their colleagues. For example, a reduction in available resources correlates with lower reversal rates.
Because this academic movement is in its infancy, however, its techniques and findings leave plenty of room for growth. No one has yet analyzed how the availability of resources affects the accuracy of judicial decisions. The answer is a pivotal concern for those in control of court budgets and personnel. If judges are able to do their jobs as well or better with less (and they are willing to accept less), then cutting budgets could very well be a wise savings measure. If judges make more errors or become so dissatisfied that they no longer want to continue, then stripping courts of resources could be very dangerous, if not destructive.
Here, I use behavioral experimentation to show how the amount of resources available to judges interacts with the power of law to constrain them. Using a judicial simulation with law students from several law schools, I uncover evidence suggesting that reducing resources can increase the likelihood that judges will follow the straightforward dictates of the law. Before budget cutters rejoice, however, it appears that this enhancement to legal constraint comes with a cost - namely, a significant reduction in the judges’ sense that they have reached righteous results. The evidence supports the idea that boosting constraint in this way might increase judge dissatisfaction, perhaps exacerbating the problem of bench vacancies.