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Unpredictable Outcome or Equitable Decision? Sometimes They Coincide.

Judicial decisions sometimes align with the principles of game theory, suggesting that arbitrarily deciding cases could offer strategic advantages.

judgmentof fairness or righteousness: randomly determined or morally correct? It might be either.
judgmentof fairness or righteousness: randomly determined or morally correct? It might be either.

Unpredictable Outcome or Equitable Decision? Sometimes They Coincide.

In the intricate world of justice, the role of judges is crucial. However, the process of judicial decision-making has long been a subject of debate, with some arguing that decisions can appear arbitrary. A recent study by Alvaro Sandroni, a professor of managerial economics and decision sciences, and Leo Katz, a professor at the University of Pennsylvania, sheds new light on this topic.

The researchers' model suggests that a judge's ruling in a difficult case may be influenced by the smallest of subconscious nudges, even if they appear to weigh all the merits of a case fairly. This finding builds on the commonly observed phenomenon in legal scholarship called the selection effect, where many legal conflicts have a clear winner based on facts or precedent, causing attorneys to push for out-of-court settlements.

Game theory, specifically the case-space approach, has been applied to model judicial decision-making. This approach analyzes judges’ choices as strategic moves influenced by precedent, legal principles, and external pressures. Courts follow precedents (stare decisis), which creates path dependence in judicial decisions; judges apply analogical reasoning to past cases to guide rulings, making decisions arguably less arbitrary and more consistent over time.

The common law system itself is conceptualized as a complex adaptive system that "tolerates and exploits inconsistencies and contradictions" but not arbitrariness. This complexity stems from adversarial mechanisms and decentralized decision-making that produce predictable yet flexible outcomes. Unpredictability does not equate to arbitrariness but reflects complex adaptive behavior.

The game-theory model produced by Sandroni and Katz suggests that judges and litigants are in a strategic situation, despite it not being immediately obvious. If only hard cases reach court, a rational judge can rule arbitrarily, but litigants will bring more easy cases to trial, forcing judges to pay attention again. In their model, called "The Judging Game," Sandroni and Katz introduce judges as a third party with motivations to minimize errors and effort.

Interestingly, the researchers' model suggests that a well-functioning legal system should have a high number of easy cases to ensure fair and impartial judgments. Contrary to popular belief, the more arbitrariness in judicial decisions, the better the functioning of the legal system, according to the researchers. This finding challenges the ideal of impartial judges but is seen as a positive sign for the legal system.

In summary, the game-theoretic literature indicates that while judicial decisions may vary and exhibit complexity, they are driven by strategic considerations such as precedent, incentives, and legal constraints rather than arbitrary choice. Arbitrary decisions would undermine the stability and predictability that legal systems and game-theoretic models presuppose and explain.

  1. In the realm of law and legal scholarship, the model developed by Sandroni and Katz, professors of economics and decision sciences, underscores the influence of strategic considerations on judges' decisions, even in complex and difficult cases.
  2. Paradoxically, the researchers' findings suggest that a well-functioning legal system, characterized by fair and impartial judgments, may actually benefit from a higher number of easy cases, contrary to the common belief that a lack of arbitrariness in judicial decisions is desirable.

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