Penn Carey Law professor Leo Katz explains how the selection effect and judicial strategy can make merit-based rulings look indistinguishable from politically motivated or random decisions.
2 min. read
The Journal of Legal Studies has published a new article by Leo Katz, Frank Carano Professor of Law at the University of Pennsylvania, co-authored with Alvaro Sandroni of Northwestern University’s Kellogg School of Management. In “The Judging Game,” Katz and Sandroni develop a game-theoretic model that helps explain why judicial decisions often appear either politically motivated or arbitrary—even in legal systems staffed by rational, competent, and largely impartial judges.
The authors argue that this appearance is the natural result of the selection effect—the tendency for cases with clear outcomes to settle out of court—combined with judges’ rational response to that fact. Litigants tend to settle “easy” cases to minimize litigation costs, meaning that judges mostly decide complex, evenly balanced cases. Under the right conditions, this dynamic makes judges’ decisions observationally indistinguishable from decisions based on political bias or even a coin toss.
“We show that because of the selection effect, a judicial system with competent, motivated, mostly impartial judges will produce decisions that are indistinguishable from decisions based on politics or a coin flip,” says Katz. “They look lawless, but they aren’t. The selection effect that ensures that mostly hard cases proceed to appeal just make it look that way. This is actually good news.”
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