Sen and the Hart of jurisprudence: A critique of the economic analysis of judicial behavior

This Comment argues that economic analysis provides an inadequate account o f judicial behavior because economic models are incompatible with a jurispr udence that recognizes basic rule-of-law values. Whereas standard economic theory is committed to thinking of a judge as exclusively self-interested, two fundamental problems with this conception exist. First, as application of Amartya Sen's critique of the behavioral foundations of economic theory to judicial behavior reveals, the decision of a judge who meets her judicia l obligations may fail to maximize her self-interest. Second, even if the s elf-interest-maximizing decision coincides with the behavior that her judic ial obligations require, economic models still fail to provide an accurate explanation of judicial decision making. This inability is attributable to economic theory's failure to recognize the distinguishing feature of judici al behavior-what H.L.A. Hart compellingly describes as relating to a rule f rom the internal point of view. In Overcoming Law, Richard Posner anticipates this Comment's challenge to t he economic analysis of judicial behavior, but significant problems exist w ith his attempt to meet it. Because Posner assumes away,ny the problem of o bligation and reduces judicial motivation to self-interest, his method negl ects Hart's concern with the internal aspect of obligatory social rules. It is thus incompatible at the theoretical level with the liberal ideal of th e rule of law. Additionally, Posner's approach is anti-empirical by methodological necessi ty. Thus, his assertions notwithstanding, his theory of judicial behavior i s no more empirically grounded than the liberal jurisprudence whose concept ion of the judge he derides. Nevertheless, this reality does not absolve ad herents of liberal legal philosophy from the responsibility of empirically testing their own understandings of judicial behavior Rather, researchers n eed to test empirically both Hart's and Posner's accounts of why judges fol low institutional rules. In particular, in addition to observing judicial b ehavior; investigators need to persuade judges to introspect about and comm unicate their experiences of themselves and each other on the bench.