Centuries of legal investigation have shown that judges often make decisions based on prejudice, luck or other illegal estimates. For example, a Famous study from 2011 He found that the judges ruled more detailed in the morning and after lunch and were stricter shortly before a food break.
“This is just one example within hundreds of documents that say that judges are arbitrary,” he says Alvaro SandroniProfessor of Directorates of Finance and Sciences. “Or sometimes the Supreme Court comes to mind because they tend to be predictable for decision making based on their political preferences and not by law.
Often, these conclusions are framed as proof that the justice system is broken or corrupt. But Sandroni worked with Leo Katsch At the University of Pennsylvania to determine if the theory of games could provide a less normal explanation.
The model of the game-theory produced a stunning journey: due to the types of cases that reach the trial, it is often meaningful for judges to rule accidentally.
“The argument we make is that if the system works the way it needs to work, then in some cases, virtually all decisions will look like random or politically motivated,” says Sandroni. “So to discern what a good judge is doing and what a bad judge does, it’s not so easy to just look at his decisions.”
Rules of the game
Game theory is an approach to understanding real systems, such as economy or diplomacy, with mathematical modeling of participants’ strategies and how to interact.
The approach was often used to study legal procedures, usually evaluating the competitive interests of the opposing sides in one case. In the Sandroni and Katz model, called “The Cresging Game”, they introduce judges as a third part with their own motives: to minimize errors and effort.
“Our game is mainly among the judges and the parties,” says Sandroni. “It’s not so obvious that they are in strategic situation. So there was an attempt to prove that.”
The model of researchers is based on a common observed phenomenon on the legal scholarship called the Effect Selection. Because many legal conflicts have a clear winner based on the events or the previous ones, lawyers on both sides will often push to settle these easy -to -court cases.
“People know that if you send a trivial case to the court where everyone recognizes who is right and wrong, the judge will rule properly, assuming that the judge is honest,” Sandroni says. “And so people settle the case, why should they charge all these expenses to get a result that was clear from the beginning?”
This means that cases that reach the courtroom are often uniformly balanced without an obvious ruling, which leads to provocative consistency.
“If all the cases going to court were harsh and had no resolution, there would be no incentive for the judge to even examine it,” Sandroni says. “The judges would simply say,” Okay, I know that no matter how much I struggle with it, in the end I would make the functional equivalent of overthrowing a currency or merely the decision based on my bias. ”
Optimizing the attention
Researchers’ game receives this observation about the selection result one step further. If only the harsh cases arrive in court, a reasonable judge does not need to pay attention and may arbitrarily rule. But if the parties know that they are happening, they will bring easier cases in trial, hoping to win the “flip coin”. And because judges want to avoid making mistakes, they will start paying attention again.
“It is not stable for judges to pay 100 percent attention, if they did, then they will waste their time,” says Sandroni. “It is also not stable for judges to pay zero attention, because then they are going to start taking many obvious cases and to rule incorrectly.”
Ultimately, this impulse and attraction reach a balance where a mixture of harsh and easy cases goes to court, the researchers have noticed. And while this theoretical scenario seems extreme compared to the real world-where no one would expect to find a judge who will go through a whole test-the most realistic behaviors could cause a similar effect, says Sandroni.
“No need to be a scenario where some judges will pay attention and some judges do not. Maybe all judges pay attention in some cases or some fraction of cases or to some degree of tension. But it may not be their full attention, because if they were, then only harsh cases [would] Go to court and would waste their time. ”
Arbitrary but functional
The ambiguous balance of harsh affairs also opens a space for judicial prejudice, either political or legal. Even if the judge seems to weigh all the advantages of a case and writes a long written opinion to support their decision, their decision in a difficult case may have started from the smaller subconscious turbines.
“The idea is that if you are impartial, your decision is arbitrary and if you are biased – even if this bias is minimal – then you rule as if it is the only thing that matters,” says Sandroni. “Because if the case is very balanced, then any tiny bias will push the scale.”
Although this conclusion challenges the ideal of impartial judges, Sandroni says that this phenomenon is a positive sign for the legal system, as it would be for a good operating company that solves most of its problems before reaching the CEO office.
“The more arbitrariness, the better the system,” Sandroni says. “This sounds the opposite, but we do not say that the judges must rule by suspending a currency. We say that if the judges are in a situation where there is nothing more than the overthrow of a currency, this is a sign that the system works.”
