Tuesday, April 7, 2009
Posted by Alan Childress
William Henderson (Indiana--Bloomington), Christopher Zorn (Penn State, Poly Sci., shown below at right but left) and Jason Czarnezki (Vermont Law School) have published to SSRN their empirical and interesting article "Working Class Judges." It also recently came out in 88 Boston Law Review 829. In his usual modesty, Bill did not tell us; I found it via the SSRN emails from Brad Wendel. But anyway, congratulations to our coblogger. (Not that he logs cobs or anything.) Here is the abstract:
At the end of his inquiry, Baker concludes that higher judicial salaries would have virtually no effect on the performance of federal appellate judges. The purpose of this Reply is to qualify Baker's interpretation of his results, at least with regard to judges located in the "Top Five" legal markets of New York, Chicago, Los Angeles, San Francisco, and Washington, D.C. In his original analysis, Baker relies upon the average law firm partnership compensation, adjusted for years in practice and region, to estimate the forgone income - and hence opportunity costs - of each federal judge. Baker explicitly anticipated the possibility that this variable would understate the opportunity cost in large legal markets; thus, he included a Top Five variable plus an interaction term, which captures the effect of forgone earnings when a judge is located in one of the nation's five largest legal markets. Baker's discussion, however, does not formally address the significance of the interaction term, which requires some additional steps to properly interpret.
Based on our reanalysis of Baker's specifications, it appears that judges in the largest legal markets often behave differently than their smaller market counterparts. Specifically, the lower judicial salaries in Top Five markets strongly correlate with behavior Baker characterizes as "ideological" or "influence-motivated." Conversely, while lower judicial salaries in small markets correlate with longer delays in issuing opinions, the exact opposite effect describes the behavior of judges in Top Five metropolitan areas.
Our brief Reply proceeds as follows. Part I provides our reanalysis of Baker's data. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the debate over judicial salaries is rooted in the more general problem of greater income disparity within the American legal profession.