Publish or Paris? Evidence of How Judges Allocate Their Time

Abstract

A utility-maximizing model of judicial behavior predicts that judges will allocate their time so that the marginal utility they derive from the time spent on each judicial and non-judicial activity will be the same. Thus, all else equal, judges who have stronger preferences for publishing opinions, who have lesser workloads, or who are able to write publishable decisions more efficiently should be more likely to publish their decisions. Using federal district court judges' decisions regarding the constitutionality of the Federal Sentencing Guidelines, this paper presents empirical support for these predictions. Many judicial, institutional, and other characteristics are examined that should be correlated with a judge's workload or with a judge's taste for, or efficiency in, publishing opinions. These analyses find that, all else equal, judges who held prior political positions, who received higher ABA ratings, who had lower caseloads, who had longer tenures, who struck down the guidelines, or who had a greater chance of promotion to a U.S. Court of Appeals were more likely to publish their decisions. In addition, judges' publication decisions were significantly affected by the prior decisions of judges in their own district, but little affected by those of judges in other districts. A judge's propensity to publish an opinion was negatively related to the number of prior written decisions in the judge's district that ruled the same way as the judge did. On the other hand, the propensity to publish was positively related to the number of prior unwritten decisions in the district that ruled the same way as the judge did.

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