It was Professor Richard Posner, one of the most famous American judges and a protagonist of the economic approach to law, who asked this provocative question. At first glance the answer he gave is surprising, at second it is self-evident: Judges maximize the same as everybody else, their own utility. At the end of the day, judges are human beings.

Law and pre-understanding

Judges have been trained in legal reasoning and in the majority of cases they decide according to legal criteria, although there are great differences between individual judges. Be that as it may, especially in big and controversial cases, the pre-understanding of the judges plays an important role. This pre-understanding - called attitude in the USA - is decisively influenced by the biography of the judge. Determinants are subjective factors such as political, economic, religious, cultural and social convictions. That a judge has a pre-understanding cannot be blamed on him/her. Every judge has that.  That’s why in all courts the rules about bias have to be observed scrupulously.

Types of utility 

The utility can be different for different judges and in reality it is different. Possible benefits are the feeling of being fair and of making effective use of scarce resources, gaining trust and respect in the legal profession and in the public at large, being influential, climbing the career ladder, becoming president of a chamber or of the whole court, the settlement of internal conflicts, pursuing a different, more lucrative profession following judicial activity, etc. But also the increase of leisure time may be such a benefit. Not every judge is a heavy labourer.

Relevance of the system

Of course, the utility maximization strategies of judges depend on the system in which they work. A judge who is appointed for life (in the case of the US Supreme Court, real life) will behave differently than a judge who is appointed only for a certain term and then has to be reconfirmed.

The judges of the ECJ and of the EFTA Court are appointed for six years by common accord of the governments. Re-appointment is possible. This rule jeopardises their independence. The governments have in many and often especially in the big cases an enormous self-interest. In addition, certain states have a tendency to make people European judges who have been socialised over years in the national bureaucracy. The utility of such a judge may be that his government wins the cases it wants to win. Moreover, European judges often wish to be re-appointed. All this benefits bureaucrats and can be to the detriment of those who generate a country’s prosperity, manufacturers, service providers, workers, dealers, investors.

Importance of procedural rules

I said that subjective factors influence the process of finding justice and the utilities of different judges may vary. Judging is not an exact science. It is therefore all the more important that the procedural rules for judges are meticulously observed. In the case of the ECJ and the EFTA Court, this concerns the oath to keep the secrecy of the deliberations and the vote, the duty to reason and publish decisions, but above all the exclusion of biased judges from a case. Bias will result in particular from the fact that a judge has made his legal opinion known in advance. If a biased judge sits, the bench is not lawfully composed. This affects the validity of the ruling.

Vote trading is the worst 

A special form of utility maximization is vote trading, called “log rolling” in the USA. The term refers to the fact that a judge may “sell” his vote for a quid pro quo. It is, for example, conceivable that judge A in a social law case, which is not very close to his/her heart, votes with judge C, a well-known social policy activist, in the hope that judge C may vote with him/her in a future patent law case, which is important to A. But it may also happen that a judge sells his vote with the aim to get the vote of the buyer in a presidential election.


All in all, there is decent utility maximization and there is indecent. In the case of a European court, an improper motive is the wish to please the own government, for example in the hope of being re-nominated. The same is true for the desire to render the government a favour out of eternal gratitude. Even shabbier would vote trading at the expense of parties with the aim of ascending the hierarchy of the court be if it were to happen.