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Supreme Court Economic Review




Standard economic analysis of judicial behavior, at least with respect to federal judges, has to some extent foundered on the apparent success of the Constitution's framers in designing an institution where almost the whole thrust of the rules governing compensation and other terms and conditions of judicial employment is to divorce judicial action from incentives. That is, the structure takes away the carrots and sticks and the different benefits and costs associated with different behaviors which inform human action in an economic model. Nonetheless, our earlier empirical work, as well as work by others, found significant associations between promotion potential and judicial decision making in the federal district bench. This earlier work left unclear, however, how district judges might use their positions to enhance their opportunities for advancement. In this paper we examine how federal judges can use the content and outcome of their decisions to signal that they would be appropriate candidates for elevation to a higher court. We first develop a framework that explains how judges can use decisions and opinions to signal to appointing authority. We then test the theory through a detailed examination of federal district judges' behavior in their decisions on the constitutionality of the sentencing guidelines during the "Sentencing Guidelines Crisis of 1988." Examining judges' decisions to rule through a written opinion, we find evidence supporting the signaling hypothesis. Judges were more likely to use written opinions to communicate their rulings in Sentencing Guidelines cases where the potential for promotion to the circuit court of appeal was greater. We also find that precedent influences outcome but not the particular reasons judges articulate for their decisions[.]

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University of Chicago Press

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