Replace judges with Keynesian beauty contests?

The job of the ju­di­cial sys­tem is to in­ter­pret the law. It’s valuable for so­ciety that the law is in­ter­preted con­sis­tently—for ex­am­ple, so we can make le­gal agree­ments and trust that judges will en­force those agree­ments in a way that’s similar to how they en­forced such agree­ments in the past. This is why le­gal prece­dents ex­ist.

I think one pos­si­ble prob­lem fac­ing democ­racy, at least here in the US, is that in­cen­tives for judges to fol­low prece­dents aren’t strong enough. Be­cause judges have so much flex­i­bil­ity in how they in­ter­pret the law, the ap­point­ment of judges has be­come a high-stakes poli­ti­cal con­test that our democ­racy wasn’t de­signed to do ro­bustly. Be­cause judges have sig­nifi­cant lee­way in sen­tenc­ing, their ap­par­ent capri­cious­ness leads peo­ple to dis­trust the ju­di­cial sys­tem. Here’s a pro­posal for fix­ing these prob­lems and re­duc­ing noise in the ju­di­cial sys­tem—which could be use­ful, but is prob­a­bly flawed and mainly just fun to think about.

A Key­ne­sian beauty con­test is a sce­nario John May­nard Keynes used to de­scribe the be­hav­ior of fi­nan­cial mar­kets. The idea is that a news­pa­per prints pho­tographs of 100 faces and challenges read­ers to pick the 6 faces who will be picked most fre­quently by the read­er­ship as a whole. The in­ter­est­ing thing is that choos­ing the faces you per­son­ally find at­trac­tive isn’t a good strat­egy. You’re bet­ter off choos­ing faces which are at­trac­tive to the pop­u­la­tion at large—or, if you be­lieve other news­pa­per read­ers are savvy, you might in­stead choose faces peo­ple think peo­ple think peo­ple are at­tracted to (and so on).

Let’s sup­pose that the news­pa­per ed­i­tor makes a mis­take and hap­pens to run the same 100 faces a sec­ond time. You’d be a fool not to pick the six win­ning faces from last time! Not only does the data show that those faces are likely to win—ev­ery­one else knows that the data shows that those faces are likely to win, and they’re go­ing to make their choices ac­cord­ingly.

In other words, the Key­ne­sian beauty con­test is struc­tured to in­cen­tivize pre­dictabil­ity and con­formism in one’s judg­ments.

Now for fix­ing the ju­di­cial sys­tem.

Imag­ine if any­one who passed the bar was al­lowed to sign up to be a “Key­ne­sian beauty con­test judge” (KBCJ here­after). Every month, they’d be sent some le­gal cases to make de­ci­sions on. Per­haps there’d be a tran­script of some kind of court in­ves­ti­ga­tion to re­view, with iden­ti­fy­ing in­for­ma­tion re­moved. (The KBCJs should re­main anony­mous too, so they would be harder to in­timi­date if, for ex­am­ple, the defen­dant is a mafia boss. And they should re­main un­known to each other so they can’t co­or­di­nate.) Then the KBCJs re­view the tran­script, pro­nounce guilt or in­no­cence, and if the per­son is thought guilty, they sen­tence them. But there’s a catch—they only get paid if their judg­ments are close enough to the av­er­age of the other KBCJs. So just like the beauty con­test par­ti­ci­pants, they have a nat­u­ral in­cen­tive to look at prece­dent in­for­ma­tion in or­der to make pre­dictable judg­ments.

Of course there are a lot of is­sues that would need to be worked out. For ex­am­ple, the KBCJs might grad­u­ally get lazy over time. If all the KBCJs know that all the KBCJs usu­ally just look at the first page of the tran­script to de­ter­mine guilt or in­no­cence, ig­nor­ing sub­se­quent pages is ac­tu­ally the best strat­egy for get­ting paid! To deal with this prob­lem, maybe the KBCJs could jus­tify why they made each de­ci­sion in writ­ing, and those jus­tifi­ca­tions could be sub­ject to ran­dom checks. They could be limited in the num­ber of cases they took on, and fired if their opinions de­vi­ated from the ma­jor­ity too of­ten. Maybe only pub­lish­ing the fi­nal re­sults of KBCJ de­ci­sions, and never pub­lish­ing the vot­ing num­bers, could also serve as a bulwark against grad­ual shift.

Ad­di­tion­ally, there might be cases that cover new le­gal ground. In those cases, how­ever, I’d ar­gue that try­ing to squeeze the case into some sort of ex­ist­ing law or prece­dent is the wrong ap­proach, and the right strat­egy is for some­one to do some origi­nal think­ing about what’s best for so­ciety, which feels like it ought to be a differ­ent pro­cess. Per­haps in ad­di­tion to stan­dard out­comes like “guilty” and “in­no­cent”, the KBCJs would have a new op­tion available, “send it to a cit­i­zen’s as­sem­bly”. If enough KBCJs voted for this op­tion, a cit­i­zen’s as­sem­bly (ad­vised by ex­perts) would be spun up to try & figure out what to do in that kind of case.

Another pos­si­ble ob­jec­tion to the KBCJ sys­tem is that it could work too well, and the KBCJs might faith­fully con­tinue to en­force prece­dents long af­ter the pop­u­la­tion at large de­cided they were un­just. One hopes that the leg­is­la­tive arm of the gov­ern­ment is com­pe­tent to re­peal un­just laws, but it’s good to build in some re­dun­dancy if that isn’t the case. Per­haps the KBCJs could also make use of the “send it to a cit­i­zen’s as­sem­bly” op­tion in cases where it seems ob­vi­ous that a par­tic­u­lar law could use a sec­ond look.

I’m also not sure about the idea of work­ing from a tran­script in­stead of see­ing live peo­ple in front of you. Work­ing from a tran­script has the ad­van­tage that, for ex­am­ple, the de­ci­sions of the KBCJs could not be in­fluenced by the defen­dant’s race or gen­der (as­sum­ing those iden­ti­fy­ing de­tails were re­moved, which should be pos­si­ble in many cases). How­ever, the KBCJs might feel their work isn’t mean­ingful if it feels too much like shuffling pa­pers, and they might grow cyn­i­cal about their job. I have a the­ory that the rea­son why pub­lic health­care sys­tems tend to work OK (com­pared to na­tion­al­iz­ing most other in­dus­tries) is that med­i­cal work­ers are in­trin­si­cally mo­ti­vated to help pa­tients, so profit in­cen­tives aren’t es­sen­tial. On the other hand, very few peo­ple are in­trin­si­cally mo­ti­vated by shuffling pa­pers at a bank, and that’s why state-run banks don’t work as well. Per­haps hav­ing the KBCJs some­times sit down for tea with the peo­ple in­volved in a case af­ter a de­ci­sion is made could go a ways to­ward solv­ing this prob­lem. To help pre­vent drama, maybe only one of the KBCJs would par­ti­ci­pate in the tea rit­ual, so the peo­ple in­volved wouldn’t know for sure what de­ci­sion that KBCJ made.