Friday, January 23, 2009

Judicial Pay and Performance

That judges are not well paid is a commonly aired grievance and was cited as the reason for the recent hike in judges’ salaries approved by the Union Cabinet. A similar complaint has been repeatedly made in the US by none other than the Chief Justice and other SCOTUS judges in speeches and before Congress of that problem now having ‘reached the level of a constitutional crisis’. This NYT article (link via marginalrevolution) cites two studies that challenge this claim as it pertains to the US. The first of them is a study of judicial pay-versus-performance in federal circuit courts and the second of state court judges. While it is no doubt true that the Indian system of appointments is very different and is difficult to compare with either of them, the first study is probably the closer of the two to India as direct election of judges is not involved.

Scott Baker who authored the first study found a few small but significant effects. One is that low pay is associated with slightly fewer dissents. Another is that judges coming from private practice write opinions faster than those coming from positions as government lawyers (again, this effect is not ‘terribly big’).

He also tests whether paying more creates a judiciary less motivated by its own influence. He quotes Ann Althouse who claimed thus: “If the pay is low, the judges will be the kind of people who don’t care that much about money. They might be monkish scholars, or they might be ideologues who see in the law whatever it is they think is good for us. . . . Low judicial pay should trouble us not because the judges will somehow lack ‘excellence.’ It should trouble us because the law will be articulated by ideologues and recluses.” He examines this question by asking whether the monetary loss suffered by judges correlates with citation bias, i.e., a greater incidence of citation of opinions of their ideological brethren but finds little evidence to support this contention.

He concludes that “the effect of low judicial pay is non-existent, at least when judicial pay is measured against the next best financial opportunity for most circuit judges. Low pay does not impact voting patterns, citation practices, the speed of controversial case disposition, or opinion quality.

… Low judicial salaries erect a barrier to entry onto the bench for some candidates. But this barrier is inconsequential if those candidates who are willing to take judgeships are indistinguishable from those candidates driven from the applicant pool by low judicial salaries. That is the story these data support.”

In the other study, the authors set out arguments about the factors that ought to determine judicial pay. One of the points they make is about comparison between judicial salaries and that of other legal professionals:

“…Judicial pay should advance the interests of the public. Whereas the existing debate focuses on comparisons between the salaries of judges and other legal professionals such as lawyers and law professors, the relevant question is not whether these salary differences are unfair. Compensation should be designed so as to give judges incentives to perform their office diligently in the public interest and to attract qualified people to judgeships. When raising salary does not change, or worsens, incentives, it is inadvisable; when it attracts people to judgeships who are more productive in the private sector or improves the patronage opportunities of elected officials, it is also inadvisable.

… We should pay judges more only if the incremental increase in pay will improve the social value of judicial performance more than the social cost of the higher pay.”

The big challenge, they acknowledge, is in determining that social value. The question they raise is relevant even to India given the opacity of our system of judicial appointments: could the increase in compensation trigger greater patronage opportunities in a system where elected officials have a more modest role to play?

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