Lewis A. Kornhauser
Professor of Law, New York University School of Law
© Copyright 1998 Lewis A. Kornhauser



1. Introduction

2. The Functions of Courts

3. The General Organization of Courts

4. Fact-Finding

5. Concluding Remarks

Bibliography on Judicial Organization and Administration (7100)


This essay surveys the economic literature on the functions and structure ofcourts. Issues concerning appellate courts and collegiality are addressed in acompanion essay.

JEL classification : K 4

Keywords: Judicial Administration, Court Organization, Judges, Adjudication

1. Introduction

Economic analyses of substantive legal rules generally suppress theadjudication of factual and legal disputes that a legal rule might engender. Thenature of adjudication, however, will influence greatly both the content of thesubstantive law and the costs of dispute resolution. An understanding of thestructure of adjudication is thus central to an understanding of the effects oflegal rules on behavior and on the identification of socially desirable legal rules.In addition, adjudication is a complex task implemented through institutions thatvary across time and jurisdiction. The structure of adjudication and questionsof judicial organization and administration thus present a rich field of study intheir own right.

These two approaches to the study of judicial organization raise different,though equally interesting, questions. As yet, no unitary theory has developedto explain the structure of adjudication. The initial economic analyses of theseinstitutions have raised several important questions: (1) What are the functionsof adjudication? (2) Why is adjudication public rather than private? (3) Shouldthere be only one system of courts or should there be many? (4) What is therelation among courts, legislature, and executive? (5) How do we explain theorganizational features of courts such as their jurisdiction and their hierarchicalrelation?

The questions presented by judicial organization and administration arecontiguous with those presented by appeal and supreme courts. I adopt asomewhat arbitrary division of topics and relegate discussions of the reasonsfor appeal, explanations of hierarchy and collegiality to section 7200 Appeal andSupreme Courts.

2. The Functions of Courts

2.1. What Do Courts Do?

Adjudication resolves disputes. Dispute resolution itself consists of at least fourdifferent tasks. First, courts must determine the facts of the dispute. Second,they apply the law to those facts. Third, the court may, in some instances,enforce its judgment against one of the parties. Finally, in some instances, thecourt may have to compel one or more of the parties to submit to the jurisdictionof the court.

In some legal systems, the judicial function is limited to these four tasks; inothers, courts also make law. In civil law theory, for example, courts simply applythe law announced by legislatures to resolve disputes. Legal theorists incommon law countries, by contrast, resolve disputes through the application oflaw but also promulgate new legal rules; courts thus play a lawmaking functionas well.

This difference between civil and common law perceptions of adjudication,as well as various structural differences between the two systems, presents achallenge to economic analysts which has yet to be answered.

2.2. Public vs. Private Adjudication

Adjudication is commonly considered a quintessential function of government.In recent years, however, there has been a substantial privatization of at leastsome these functions through a growing use of arbitration and other "privatejudges". This phenomenon has prompted scholars to study the extent to whichgovernment must supply judicial functions. Landes and Posner [1979] provideone of the earliest inquiries into the choice between private and public provisionof adjudicatory services. Working within a common law framework, they identifythe judicial functions as both dispute resolution and rule generation. They arguethat only the dispute resolution function is suitable for (partial) privatization.Some public provision of dispute resolution might be necessary because (1)enforcement of judgments might require public authority and (2) in someinstances, public authority may be necessary to compel one or more parties tosubmit the dispute to adjudication in the first place. A private market inadjudicatory services, however, would meet all other requirements of a disputeresolution system. They argue that a competitive market would producecompetent and impartial judges because both qualities would be necessary toinduce all parties to a dispute to consent to adjudication of their dispute by agiven judge. Cooter (1983) offers a similar argument.

Landes and Posner, however, argue that private provision of rules will not,in general, be desirable. Rule generation is a public good and a private judgewho announces a rule will not capture all the benefits that the announcement ofa rule creates. Therefore, in a system of private adjudication, rules will be undersupplied. In addition, competing judges may generate competing sets of rules.They do not, however, explain why rules cannot be adequately supplied bylegislatures.

Shavell (1995) considers the choice of private dispute resolution in thecontext of an established public system of courts. He addresses two questions:why would parties resort to private dispute resolution? and when is it sociallydesirable? He distinguishes ex ante invocation of private dispute resolution, inwhich the parties agree prior to the emergence of a dispute to resort to privateresolution of their dispute, from ex post invocation of it, in which the resort tothese private methods occurs after the dispute arises. He argues that ex anteinvocation is socially desirable for three reasons: (1) it may lower the costs andrisks of dispute resolution; (2) it may create better incentives to perform becauseof the greater accuracy of private resolution; and (3) it may reduce the numberof litigated disputes. He argues that ex post invocation of private disputeresolution is not desirable.

3. The General Organization of Courts

3.1. Judicial Motivation

Economic models of judicial behavior and of court organization require anassumption concerning the motivations of judges. This requirement presents thecentral challenge to the economic analysis of courts. Several approaches havebeen adopted, most of which are surveyed here. A supplementary discussionthat emphasizes a distinction between "team" and "political" models of judgesappears in section 7200 on Appeal and Supreme Courts.

The literature has focused primarily on adjudication in common lawjurisdictions. This focus has implied that lawmaking is the judicial function thathas received the most motivational attention. In this context, the literature hasadvanced three different types of answers to the question of judicial motivation.First, one can assume that judges meet their obligations as articulated in somejurisprudential theory of adjudication. Put differently, judges "follow the law".Team models, discussed in section 2 of 7200 Appeals and Supreme Courtsattempt to ground this adherence to norms in a more economic framework.Second, one can assume that judges seek to implement their own policypreferences subject to constraints such as review by other judges or bylegislatures. This political model is discussed at greater length in section 3 of7200. Third, one may assume that, as in political models, judges actself-interestedly but define self-interest differently. The literature surveyed herehas largely attempted to infer judicial motivation from the structure of incentiveswithin which the judge works.

Aranson (1990) surveys the political science literature that applies the spatialtheory of voting to courts and compares it to law and economics approaches tojudicial motivation. He suggests three competing views of judicial motivation.The first, that it is rule governed, parallels the first strand mentioned above anddiscussed at greater length in section 2 of 7200. The second, that judicialmotivation is rent redistributing, and the third, that it is wealth maximizing,describe systemic tendencies rather than the motivation of particular judges.One might understand "rent redistribution" consistently with the political modeldiscussed in section 3 of 7200. Wealth maximization, by contrast, assumes thatPosner's claim that the common law maximizes wealth can be explained in termsof judicial success in pursuit of their common aim.

Posner (1973) sketched an approach to the problem of identification of thepreferences of judges. He assumed that judges were self-interested and thenbriefly examined different incentive structures from which he inferred theunderlying preferences of the judges. In particular he compared the structure inmany states in which judges lack life tenure and aspire to higher political officeto the structure of the federal courts in the United States in which the judgeshave life tenure. These themes were developed in the subsequent literature.

Landes and Posner (1980) argue that utility maximizing judges will primarilyseek to maximize their power because their performance is too weakly linked toincome and promotion for those concerns to have much effect on judicialbehavior. They then adopt the number of times a judge is cited in other cases asa measure of his power. They then argue that judges with higher salaries andmore secure tenure will have greater power (and hence be cited more often)because higher salaries both attract more competent judges and reduce thejudge's incentives to distort his decisions and because longer tenure reducesturnover and the influence of politics. They then provide an ingenious test oftheir hypotheses. They create two samples of common law appellate opinionsrendered in 1950. First they looked at all 246 tort, contract and property casesdecided by the federal appellate courts under their diversity jurisdiction. Secondthey drew a random sample of 241 tort, property or contract cases decided bystate supreme courts in 1950. The number of cases drawn from a specific statematched the proportion of federal cases decided under the law of that state.They then compared the citation rates of state and federal decisions in the twosystems. They found only weak support for their hypothesis concerning highersalary and more secure tenure. Federal decisions were more likely to be cited inthe state supreme courts of "other" states (i.e., states other than the one ofwhich the federal court applied the law) than the decisions of state courts.

Cooter (1983) adopted a procedure similar to that of Landes and Posner(1979). He developed a theory of behavior of private judges and used that as abenchmark from which to infer the preferences of public judges. He argued thatboth public and private judges would care about their reputations among otherjudges and the bar.

Higgins and Rubin (1980) addressed the concern for promotion somewhatmore directly. They argued that judges have preferences over policy"discretion" and wealth; these preferences are conditional on their age. Theyargue that a judge's ability to satisfy her preferences are constrained in twoways. First, the reversal rate depends on the judge's policy preferences and thepolicy preferences of the higher court. Second, wealth depends on the reversalrate (because that affects each judge's prospect of promotion) and age. Theythen derive a test for the relative effects of discretion and wealth.

They study two samples. The first sample consists of those active districtcourt judges in the eighth federal circuit in 1974 who permitted the release ofdata on the total number of cases they decided in 1973 and 1974. The secondsample consisted of all active district court judges in the fifth federal circuit in1966. They found that neither age nor seniority explained the reversal rates ofthe eighth circuit judges. They did find however that the estimated parameter onreversal rate had the predicted sign and was significant at the 10% level in a logitestimation of the probability of being promoted.

Greenberg and Haley (1986) argue, contrary to the conventional wisdom ingeneral and to Posner (1985) in particular, that low judicial salaries are sociallydesirable because they signal a greater willingness to accept the non-pecuniarybenefits of the judiciary; moreover, they argue that individuals who derivegreater non-pecuniary benefits from judging make better judges.

Elder (1987) identifies two distinct mechanisms for monitoring judges:political and administrative mechanisms. These mechanisms create differentincentives so that one should observe different behaviors in systems withdifferent monitoring mechanisms. Without specifying the judicial objectivefunction precisely, he nevertheless argues that judges deciding criminal caseswill produce more trial verdicts under political monitoring than they would underadministrative monitoring. He then tests this claim on 1977 data drawn from statecriminal courts in 247 districts in seven states. His parameter estimates areconsistent with his hypothesis.

Cohen (1992) followed up Elder's approach. He argued that Elder implicitlyassumed that each judge sought to maximize his preferences defined in terms ofminimizing his workload and his reversal rate. He argues that these preferencesalso imply that, when the penalty range increases, a judge will increase thepenalty of those defendants who request a trial more than they increase thepenalty of those who plead guilty. He also argues that judges will be concernedabout promotion and that this too will influence the pattern of sentencing. Hethen considers a sample that consists of all federal antitrust indictments from1955 through 1980. In 1974, Congress increased the maximum penalties forantitrust violations from $50,000 to $100,000. He finds that promotion concernsare explanatory with respect to fines but not with respect to incarceration.

Cohen (1991) exploited the data generated by a "natural experiment"presented by the adoption of new sentencing guidelines by the United Statesfederal courts. He examined 196 decisions by federal district courts thatconsidered the constitutionality of the guidelines. He estimated a probit modelof the probability of upholding the guidelines as a function of judicial ideology,caseload, promotion potential and the number of prior decisions forconstitutionality. Promotion potential was measured by an index that reflectedthe (per district court judge) number pf open seats on the appellate circuit. Hefound that the parameters on workload and promotion potential had thepredicted sign and were highly significant.

Katz (1988) adopts a behavioral approach. He assumes that judges decidecases on the basis of the arguments presented to it. Each party offers argumentsin its favor and the court decides in favor of the plaintiff if the plaintiff'sarguments, in light of the "underlying" (or, perhaps, ex ante) merits of the case,outweigh the defendant's arguments and some random error. He then showsthat, when cases are more evenly balanced ex ante, expenditures of each partyon litigation rise; and, if judicial decision is more random or variable, each party'sexpenditures fall.

3.2. Independence of the Judiciary

Economic analysts have devoted much attention to explanations for, andimplications of, "independent" judiciaries. An "independent" judiciary is onethat is free from external influence, primarily, political influence. This conceptionof independence is somewhat at odds with the ascription of a politicalmotivation to judges themselves because independence is generally seen asguaranteeing a more "objective" resolution of disputes. Though the literaturehas not attended much to this specific problem, there are suggestions that amore general model of constitutional structure might justify an independentbranch of politically motivated judges.

Most industrialized countries assert the independence of their judiciaries butthe structures that guarantee "independence" differ greatly. In the federalsystem in the United States, for example, judges have life tenure and their(nominal) salaries can not be decreased during their lifetime. In many states ofthe United States, however, judges serve for a term of years; moreover, in manystates, they may be elected in either partisan or non-partisan elections. In boththe state and federal systems, as in common law jurisdictions generally, judgesare, however, drawn from the general bar. In many civil law countries bycontrast, law graduates choose to enter practice or the judiciary at the outset oftheir career; a judicial bureaucracy then creates incentives for that judge. Theinsulation of that bureaucracy from "normal" politics then determines the extentof judicial independence. This institutional variation across jurisdictions permitsa comparative study of judicial independence. As a consequence, studies ofindependence, unlike studies in other areas of judicial organization, have beenprimarily comparative in nature.

Landes and Posner (1975) offered the earliest discussion of independence.Their argument rests on the claim that an independent judiciary will, in statutoryinterpretation, enforce the original legislative understanding. Individuallegislatures accede to this practice because they want to increase the time astatute prevails. Landes and Posner then claim that the degree of independenceshould increase with the size of the jurisdiction because larger jurisdictionsprovide broader scope for rent-seeking. They then attempt to test their theoryon data concerning 97 statutes declared unconstitutional by the United StatesSupreme Court between 1789 and 1972.

Ramseyer (1994) extends the analysis of Landes and Posner (1975) bydrawing on a comparison of Japan and the United States. Ramseyer definesjudicial independence as the extent to which politicians do not manipulatecareers of sitting judges. He asks why some politicians provide an independent

judiciary and others do not. He claims that a political structure will provide foran independent judiciary if (i) politicians believe that elections will continueindefinitely and (ii) politicians believe that their prospects of continued victoryare low. He then does three case studies: the United States which satisfies bothantecedent conditions and has an independent judiciary; contemporary Japanwhich satisfies the first condition but not the second and does not have anindependent judiciary and imperial Japan which satisfied condition (ii) but notcondition (i) and did not have an independent judiciary.

Cooter and Ginsburg (1996) also deploy comparative data to study thequestion of judicial independence. They work with a different conception ofindependence than Ramseyer. Ramseyer's definition referred to the structure ofappointment, pay, promotion and tenure in the judiciary. Cooter and Ginsburghave a more substantive view of independence; they look to the courts abilityto make law that diverges from the views of the legislature. They argue that thedegree of judicial independence will depend on both political and constitutionalfeatures of a society. In particular they argue that societies in which a cohesiveparty dominates politics will be less likely to have judicial independence. On theother hand, the more "legislative vetoes" that the constitution builds into itspolitical process the more independence the courts have. They then askedexperts in comparative law to rank the daringness of the judiciary of variouscountries. They then regressed daringness on the number of vetoes and theduration of the governing coalition. Despite the small sample size, the parameterson both independent variables had the predicted sign and were statisticallysignificant; moreover they explained a substantial part of the variance.

3.3. Jurisdiction

Case and Controversy Requirement

Courts generally resolve disputes but the dispute must generally be, in someway, "live" and "real". In the United States, this requirement of the existence ofa real dispute is embodied in the "case or controversy" requirement of Article IIIof the Constitution. The requirement, however, is not a peculiarity of UnitedStates federal courts. With the exception of some constitutional courts, such asthose of France and Germany, that have jurisdiction to issue opinions on theconstitutionality of legislation prior to its enactment, most judicial systemsrequire some similar trigger. Why should this be so? And who should beallowed to press a claim concerning a "real" dispute?

Jensen, Meckling, and Holderness (1986) address this latter question of whoshould be allowed to press a claim in a live dispute. They argue for limited rulesof standing because, they claim, a liberal standing rule increases the costs ofengaging in any rule-governed transaction.

Landes and Posner (1994) address the first question concerning thejustification of a requirement of a concrete case to trigger the adjudicatorypower. They extend a model of legal advice developed by Shavell (1988, 1992)and Kaplow and Shavell (1992) to investigate questions concerning the use ofattorneys to the question the case or controversy requirement. They focus onthe distinction between type 1 and type 2 error -- the wrongful attribution ofliability to defendants versus the wrongful excusal from liability of defendants.They argue that this distinction can be deployed to explain much of theobserved pattern of exceptions to the case or controversy requirement.Specifically, they note that anticipatory adjudication, in violation of theconcreteness requirement, increases both errors. They then examine in detail theinstitutions of declaratory judgments, res judicata, advisory opinions, andpreliminary injunctions.

Stearns (1995, 1996) argues that the case or controversy requirement servesto restrict the occurrence of cycling that plagues institutions of social choice.For a fuller discussion, see the section on collegiality in 7200 Appeal andSupreme Courts.

Specialized Courts vs. Courts of General Jurisdiction

Over what disputes should a court have jurisdiction to decide? Two methods fordefining the subject matter jurisdiction of courts predominate. First, and mostcommonly, a court might have jurisdiction over any dispute that arises within aspecified geographic area. Virtually all court systems consist primarily of thesecourts of general jurisdiction. Second, a court might have jurisdiction overdisputes with a specified subject matter. Notice that these organizationalpatterns could be applied to courts of first instance (that find facts as well asapply law) only, to appellate courts only, or to both courts of first instance andto appellate courts. Moreover, in a system with specialized courts of firstinstance but appeal to courts of general jurisdiction, one could limit appeal to asingle general court of jurisdiction or one could allocate non-exclusivejurisdiction to a number of appellate courts. In the United States, one mayunderstand the administrative law structure as establishing administrativeagencies as specialized courts to determine the facts and make initial legalrulings that are then appealed to courts of general jurisdictions. Thus most labordisputes, welfare disputes, and immigration disputes are first heard inadministrative agencies and then, if necessary, appealed to the federal courts ofappeals. In these instances, each of the federal courts of appeal has jurisdictionto hear appeals from these specialized tribunals. Many environmental disputes,by contrast, may only be appealed to the U.S. Court of Appeals for the D.C.Circuit. Finally, there are some specialized courts of appeal such as the tax courtand the federal circuit for Court of Appeals for the Federal Circuit which hasjurisdiction over patent and other intellectual property disputes. What is theappropriate way to allocate jurisdiction among courts?

Posner (1985) argues that specialized appellate courts are likely to be moreideological than courts of general jurisdiction because judges on specializedcourts are likely to be more focused on the subject matter of their jurisdictionand hence more likely to be sensitive, and responsive, to controversy.

Revesz (1990) analyzes the desirability of vesting appellate authority overadministrative agencies in specialized courts. His analysis emphasizes the effectof the nature of the appellate court's jurisdiction on legislative ability to controlagencies. He argues that review by specialized courts reduces the effectivenessof congressional delegation to administrative agencies. He develops a simpleprincipal-agent model in which Congress is the principal and the administrativeagency the agent. They have different policy preferences becausecommissioners in agencies have terms that do not correspond to the terms of thecommissioners and because there may be a divergence in preferences betweenCongress and the President who appoints the head of many agencies. Congresshas three mechanisms for the control of agencies: it may overrule particulardecisions, it may exercise oversight through one or more committees, and it mayalter the agency's budget. Congress, however, might also use the courts tomonitor the agency. Revesz argues that a court of general jurisdiction is a bettermonitor.

3.4. Court Congestion

Comparative law scholars have often noted the variation in "litigiousness"across countries. There is little economic literature that seeks to explain thiscross-cultural variation but there is a substantial literature analyzing the causesof "congestion" in the courts of one notably litigious society, the United States.

Virtually every proposal to reduce court congestion in the United Statesfederal courts recommends the abolition of diversity jurisdiction which grantsfederal courts the authority to resolve disputes between citizens of differentstates, even when they involve only questions of sate law. One justification fordiversity is that it prevents discrimination against out-of-state residents.Goldman and Marks [1980] tested this claim by looking at two samples ofattorneys drawn from U.S. District Court for the Northern District of Illinois in1976. They randomly sampled 200 attorneys tied to specific questions and askedthem their reasons for litigating in federal court. They had a 62 % response rate.In addition they randomly sampled 205 attorneys from the law division of CookCounty District Court in 1976; this court had a $15,000 amount a controversyminimum so that the cases within its jurisdiction were reasonably comparable tothose within the jurisdiction of the federal court. This survey had only a 37%response rate. Only 40% of the attorneys in federal court listed local bias as areason for choosing federal court. Attorneys drawn from state court cases wereasked to consider a hypothetical case identical to the one litigated but in whichtheir client was an out-of-state resident. Roughly 25% said they would file infederal court. Local bias thus had very little influence on the choice of forum.

Noam (1981) attempts to assess the social cost of court congestion bycalculating the effects of congestion on criminal sentences and then on the crimerate. He argues that plea bargain reached between prosecutor and defendant willdepend on the caseload of the court. The higher the caseload per judge, thelower the average sentence. Moreover, he argues that the per capita crime rateis a function of the average sentence. Using simple specifications of thesefunctional relations he derives an equation that represents the marginal effect ofadditional resources devoted to the criminal courts. He then estimates hisequation using FBI data on crime rates for four types of crimes against propertyin the District of Columbia. This estimation yields very high marginal returns toincreased investment in the court system.

4. Fact-Finding

To resolve disputes, courts must determine the facts. A substantial portion ofprocedural rules govern the fact-finding process. Each of these rules influencesthe structure of the judicial system because each influences the cost of litigationrelative to the cost of settlement and to self-help remedies. (The literature onevidence and the choice between settlement and litigation are summarizedelsewhere in this volume.) Some procedural rules play a more central role in theorganization of court systems. In this section, I examine the structure of trialsand the use of juries, a characteristic element of many but not all court systems.

4.1. Sequential vs. Unitary Trials

Most disputes present more than one factual issue for resolution. Should thesebe resolved simultaneously or sequentially? In the United States, factual issuesare generally resolved simultaneously, but often the question of liability and thequestion of remedy are decided sequentially, sometimes by different fact-finders.

Landes (1993) presents the primary investigation of this issue. He modifieshis own, early model of the choice between settlement and litigation (see Landes(1971)) to analyze several issues concerning the effect of trial structure on thesettlement rate. The analysis rests on the insight that a sequential structure tothe litigation reduces the expected cost of litigation. Hence, plaintiff's incentiveto sue increases, which implies that the number of lawsuits will increase. Landesargues further that sequential trials reduce the probability of settlement becausethey narrow the range of acceptable settlements.

4.2. Juries

Many legal systems divide the law-finding (or law-applying) and fact-findingfunctions of trial courts. These systems delegate fact-finding to a jury, generallya group of lay individuals chosen more or less randomly to decide one case.This procedure raises several questions.

Jury Selection

Bowles (1980) compares the cost of jury trials in Britain to the cost of a systemof fact-finding by a three-judge court. The cost of a jury trial consists primarilyof the production foregone by persons serving on the jury. Bowles notes thathigh wage earners will attempt to avoid jury service more vigorously than lowwage earners. He concludes that a jury trial will be less expensive if the cost ofa judge is more than three times the cost of a juror. He does not, however,correct for the speed of the trial.

Martin (1972) also estimates the social cost of the jury system in the UnitedStates. He first estimates the occupational distribution of jurors on theassumption that juror days of service are distributed identically to jurors. Hethen multiplied by the median daily wage rate for each occupation and estimatedthe social cost at $233 million ( $135 million) in 1958 dollars. He then comparesthe cost of two systems of jury selection: random selection and a "keyman"procedure in which lists are constructed through consultation with communityleaders. He finds that random selection is significantly less expensive becausecommunity leaders are more likely to draw jurors from high wage occupationsthan random selection. Finally Martin argues that voluntary service wouldreduce costs even further.

Jury Size and Jury Voting Rules

Models of jury size and the effects of jury voting rules must specify how juriesdeliberate and vote. Many models assume no deliberation. Moreover, untilrecently, the literature assumed that each juror voted conscientiously; her voteexpressed her view of the guilt or innocence of the defendant. When oneassumes in addition that each juror is more likely than not to decide correctlyand that jurors' judgments are independent of each other, the Condorcet jurytheorem applies and one can easily show first, that a unanimity rule minimizesthe probability of wrongful convictions; second, that majority rule maximizes theprobability of a correct decision; and third, that, as the number of jurorsincreases, the probability of wrongful conviction under a unanimity ruledecreases towards zero and the probability of a correct decision under majorityrule increases towards one. Recently, however, analysts have introduced modelsof strategic voting by jurors and these models yield dramatically differentresults.

Austen-Smith and Banks (1996) and Feddersen and Pesendorfer (1996) showhow radically the assumption of strategic behavior by jurors undermines theCondorcet Jury Theorem. When a juror acts strategically, the informationaggregation feature of the Condorcet Jury Theorem disappears because eachjuror now decides how to cast her vote in light only of those instances in whichher vote will be pivotal. As a consequence, as Austen-Smith and Banks showclearly, a juror's vote may not reveal her actual view concerning the case.Feddersen and Pesendorfer show, more dramatically, that the probability ofwrongful conviction may be higher under a unanimity rule than under a differentvoting rule.

These models raise important questions about the appropriate way in whichto model juries. These questions parallel those presented in the study ofcollegial courts, discussed in section 7200, where team models in which judgesact in a fashion somewhat analogous to the assumption underlying the naiveCondorcet Jury Theorem models contend with political models in which judgesact strategically.

In the United States, until the 1970s, juries typically consisted of twelveindividuals and required unanimity to render a verdict. Then, the United StatesSupreme Court ruled that neither the number twelve nor unanimity wereconstitutionally required in state criminal proceedings. These decisions spurredresearch into the importance of these requirements.

Klevorick and Rothschild (1979) provide a model of jury deliberation in orderto determine whether non-unanimous juries or unanimous juries of fewer thantwelve jurors would yield different verdicts than the "standard," twelve-personunanimous jury. Their analysis uses a stationary Markov model to provide adynamic model of the majority persuasion hypothesis, derived from Kalven andZeisal (1966), that the final verdict is the same as the majority position on thefirst ballot. They offer both a discrete and continuous model of jury deliberation.The cores of the models are identical. The jurors enter the jury room with a viewon the merits and cast an initial ballot. The vote then changes incrementally astime passes with one person changing her vote at each instant until unanimityis reached. The transition probabilities are given by the current vote: theprobability of one more vote for the plaintiff equals the percentage of jurors whofavor plaintiff's case. In this model one can calculate both the expected numberof jury ballots until unanimity is reached (conditional on the initial vote) and theprobability that a non-unanimous jury will agree with a unanimous one.Klevorick and Rothschild show that a move to a requirement of ten votes forjudgment rather twelve always alters the probability of conviction by less than.0055. Their result, of course, depends critically on the manner in which majoritypressure operates in the jury room. When they adopt a different assumptionconcerning transition probabilities, they calculate that the move to ten forjudgment may lead to as many 1/6 of the cases decided differently. Klevorick and

Rothschild also show that this shift substantially reduces the expected numberof ballots prior to judgment.

Schwartz and Schwartz (1992, 1995, 1996) offer a somewhat differentapproach to jury decision making. The earliest paper addresses three questionsconcerning the decision rules of juries. First, why do juries fail to reach averdict? Second, what verdict will a jury reach when it may convict for lesserincluded offenses or when multiple offenses are litigated simultaneously? Third,how, if at all, will the jury decision rule alter the charges filed by prosecutors? Tothis end, they assume that a defendant might be charged with any number ofcounts within some interval. They consider two regimes. In one the prosecutorchooses one count in the interval, and the jury must choose among threeoutcomes, conviction on that count, acquittal, or no decision. In the secondregime, the prosecutor chooses two counts, one entailing a lesser punishmentthan the other, and the jury chooses among four outcomes, acquittal on bothcounts, conviction on the lesser count, conviction on the more severe count, orno decision. In the event of no decision, a retrial before a different jury occurs.Each jury consists of four people, chosen randomly from a population. Eachpotential juror is an expected utility maximizer, characterized by spatial"preferences" for punishment of the defendant; that is, each juror has an idealoutcome that represents the crime for which she believes the defendant shouldbe convicted. The simple model implies that a defendant always prefers anon-unanimous, super-majority rule to unanimity because his expected verdictis lower under the non-unanimous rule. This result occurs because, though theprobability of conviction is greater under non-unanimity, the probability ofacquittal rises more rapidly. When jury may convict on a lesser included offense,the analysis is more complex and less clear-cut.

Schwartz and Schwartz (1995) extend the analysis of their prior article in thecontext of the liability and punishment phases of capital offenses in the UnitedStates. They argue that the decision process for fact finding has three elements:the voting rule, the jury selection process, and the characterization of the set ofoutcomes among which the jury may choose. They argue that, in a multi-stagefact-finding process, the voting rule must be the same in each stage in order toavoid the jury at one stage nullifying the law governing the jury at a differentstage. In addition, only reciprocal voting rules will avoid hung juries (where arule is reciprocal if "conviction" requires c of n votes then "acquittal" requiresn-c of n votes).

Schwartz and Schwartz (1996) carries the argument of the prior two papersfurther. They argue that any voting rule should satisfy at least two properties:(1) it should be decisive; and (2) it should satisfy the "one person/one vote"criterion. This second property does not eliminate any anonymous voting rule,whether majority, supermajority, or submajority. (Super and submajority ruleswould violate neutrality). The first criterion identifies majority rule as the uniquedecisive voting rule when there are only two possible outcomes. To satisfy thedesire to minimize wrongful convictions that the unanimity rule is said topromote, Schwartz and Schwartz argue that the size of the jury should beincreased perhaps to 15.

5. Concluding Remarks

Economic analysis of judicial organization and administration, though it hasgreatly increased understanding, is only in its infancy. No question has receivedan exhaustive treatment and many have not been examined at all.

This area suggests a multitude of comparative questions, most of which havenot received any attention at all. They are ripe for analysis.

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© Copyright 1998 Lewis A. Kornhauser

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