Document Type

Article

Publication Date

2002

Abstract

‘How Do Judges Maximize? (The Same Way Everybody Else Does – Boundedly): Rules of Thumb in Securities Fraud Opinions’, by Stephen M. Bainbridge and G. Mitu Gulati, confronts the reader with a theory about judicial behavior in the face of complex, "unexciting" cases such as those involving securities fraud. The story is simple: few judges find any opportunity for personal satisfaction or enhanced reputation here, so they simply try to minimize cognitive effort, off-loading much of the work that has to be done to their clerks. The evidence that Bainbridge and Gulati offer is the creation of some ten or so "heuristic" legal doctrines in securities law marked by two essential features: (1) they rest on superficial, or at least not self-evidently accurate, empirical assumptions about marketplace behavior, and (2) they readily permit the summary dismissal of cases "as a matter of law. The authors find no good explanation for these besides some form of cognitive sloth. This claim is bound to touch a sensitive nerve, especially among judges, former clerks, and academics who want to see much more going on in the case law than this. My hunch is that the authors have put their finger on something very important, but that they have oversimplified. I suspect that, on average, judges are more motivated than they suggest and try fairly hard to get their cases right. But severe constraints of time and lack of knowledge force them to rely more on intuition about the right result than careful inquiry. Intuitively, the heuristics identified by Bainbridge and Gulati appeal to the judges as substantively reasonable, in the sense that even if they are imperfect, they do more good than harm. The question this commentary explores is what makes judges think that. The answer is not likely to be simple.

Publication Citation

51 Emory L.J. 309-318 (2002)

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