Did the Independence of Judges Reduce Legal Development in England, 1600–1800?

Abstract

Conventional wisdom confers iconic status on the clause of England’s Act of Settlement (1701) mandating secure tenure for judges. This paper uses new databases of judges’ biographies and citations to estimate how the move to secure tenure affected the number of citations to judges’ decisions, a measure of the quality of decisions. Several strategies facilitate identification of the effect of secure tenure. A court-year panel permits use of a difference-in-differences framework. Controls capture judges’ human capital and amount of litigation. Historical evidence, tests of sensitivity to omitted-variable bias, and instrumental variables estimates support the findings on the effects of tenure arrangements derived from ordinary least squares estimates. Secure tenure had a strong deleterious effect on associate judges’ decisions and a smaller positive effect on chief judges’ decisions. The effect of all judges having secure tenure is negative, large, and statistically significant. The act had an effect opposite of that universally assumed. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior…. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. (Hamilton [1788] 1981, pp. 226–27)In one sense you could say that Judge [Roy] Bean was independent. He did whatever he liked. (O’Connor 2009, p. 47)

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