We are in the process of building a simple range voting or bayesian voting model of appellate judging as well as a separate model of legal evasion behavior (e.g. why do so many drivers on the road routinely exceed the speed limit), so this is what we’ve been reading during the 4th of July holiday:
1. Alex Raskolnikov, Probabilistic compliance, to be published in The Yale Journal of Regulation. This paper presents a simple model of legal uncertainty and explores some important questions, such as what effect does legal uncertainty (i.e. the use of vague standards instead of bright-line rules) have on the compliance behavior of business firms and on the market for legal advice? Weakness of the paper: the model assumes perfect detection.
2. Eric A. Posner & Adrian Vermeule, The votes of other judges, The Georgetown Law Journal, Vol. 105 (2016), pp. 159-190. This theoretical paper explores some intriguing questions about judicial disagreement and judicial voting, such as why do judges disagree about the proper outcome of many close cases and should a judge take into account such disagreement when it occurs? Weakness of the paper: the authors’ two-step approach is too simplistic and doesn’t distinguish between conciliation and non-conciliation views of disagreement among epistemic peers.
3. Jeremy Waldron, Five to four: why do bare majorities rule on courts?, published in The Yale Law Journal, Vol. 123, no. 6 (2014), pp. 1692-1730. This fascinating paper poses a fundamental yet under-theorized question in the judicial context: why do judges on multi-member appellate courts use majority voting–assigning equal weight to each judge’s vote–to settle their differences? Weakness of the paper: the normative part of the author’s analysis is incomplete. Specifically, why does ethics supposedly require that each person’s vote be weighted equally, regardless of the voter’s intensity?
4. Philip Pettit, When to defer to majority testimony, and when not, Analysis, Vol. 66, no. 3 (2006), pp. 179-187. This paper is part of a much broader literature; it explores some intricate theoretical questions about Condorcet’s jury theorem.
5. Robert Schlaifer, Probability and statistics for business decisions, McGraw-Hill (1959). We keep finding references to Schlaifer’s book in the work of two of our intellectual heroes, the bayesian decision theorist Howard Raiffa (pictured below, left side) and the bayesian mathematician Jimmie Savage (pictured below, right side), so we decided to order a copy of this book and begin reading …