Abstract
Departing from the observation that neutral experts are increasingly appointed by courts, this paper investigates the incentives of courts to appoint experts, and the interactions between the judge’s and the expert’s efforts to discover the truth about a given case. Judges seek to make correct decisions and may choose to appoint experts in order to do so. Experts are assumed to be guided by both reputational and truth-finding motives. We highlight the determinants of the judge’s and the expert’s effort levels and of the judge’s decision whether to appoint an expert. We find that the expert’s effort is decreasing in the judge’s effort, which implies potential freeriding from the judge. Moreover, we find that (i) the judge’s effort is generally suboptimal, and (ii) they might resort to an expert appraisal too frequently, thereby contributing to increased court congestion and higher costs for society. Our results therefore suggest that, under conditions that we discuss, it may be socially beneficial to apply a principle of proportionality to the use of expert testimony, depending on the complexity of the case.
Acknowledgements
We would like to thank Christian At, Pierre Bentata, Nathalie Chappe, Giuseppe Dari Mattiacci, Dominique Demougin, Tim Friehe, Yannick Gabuthy, Denis Gromb and Lionel Thomas for their comments on earlier versions of this paper as well as the two anonymous referees who helped improving the quality of this paper.
Appendix
A Proof of Lemma 1
Maximizing
This condition implies that if
From the implicit function theorem, we have:
With:
Thus:
This condition means that E’s effort decreases in J’s effort (i.e.
And:
These conditions mean that the magnitude of the decrease of E’s effort with respect to J’s effort increases in λ and η (i.e.
Thus, from the implicit function theorem:
This condition means that E’s effort increases with the complexity of the case at hand (
B Proof of Lemma 2
Let us define:
The complexity threshold
The right hand side of this equation is strictly positive since k > 0, which implies that the left hand side should also be strictly positive. This is the case only if
Applying the implicit function theorem on (37), we have:
With:
And:
This implies:
Which means that the complexity threshold chosen by J is decreasing with respect to her own effort (i.e.
Given that
Moreover, J does not appoint an expert with a strictly positive probability if her effort is not too low, i.e. if:
The two conditions (42) and (43) imply that
It follows that if
C Proof of Lemma 3
We have:
D Proof of Lemma 4
Maximizing
From Assumption 1, the left hand side of (48) is strictly positive, implying that the right hand side should also be strictly positive, wich is true only if J’s effort is strictly positive (
Applying the implicit function theorem on (48), we have:
With:
According to (14) and Lemma 1, this expression is negative, thus implying from (49) that
E Proof of Lemma 5
We have:
F Proof of Proposition 1
The proof follows from Lemma 1 and Lemma 2.
G Proof of Proposition 2
The proof follows from (24).
H Proof of Proposition 3
The policymaker chooses ex ante the socially optimal complexity threshold
By taking the derivative of
The social welfare is decreasing with respect to the complexity threshold if (54) is negative when evaluated for
Consider the first term to the right hand side of (54). We have:
Assume the policymaker chooses ex ante a complexity threshold
Consider the second term to the right hand side of (54). We have:
From Assumption 1,
Consider the third term to the right hand side of (54). We have:
From Lemma 5, we know that
Additional comparative statics results
The expert’s effort
For a given J’s effort (
Effect of µ on the expert’s effort
Effect of λ on the expert’s effort.
Thus:
Others.
The complexity threshold chosen by the judge
For a given J’s effort (
Effect of µ on the complexity threshold
Effect of λ on the complexity threshold
Thus:
Effect of k on the complexity threshold
Effect of
The judge’s effort
We obtain the following comparative statics results by applying the implicit function theorem on the equation
As a preliminary stage, we need:
Effect of µ on the judge’s effort
Thus:
Effect of λ on the judge’s effort
Thus, the sign of
Effect of k on the judge’s effort
Thus:
Effect of
With:
Thus, the sign of
References
Bourjade, S., and B. Jullien. 2011. “The Roles of Reputation and Transparency on the Behavior of Biased Experts,” 42 (3)The RAND Journal of Economics 575–594.10.1111/j.1756-2171.2011.00146.xSearch in Google Scholar
Cameron, C. M., and L. A. Kornhauser. 2005a. “Appeals Mechanisms, Litigant Selection, and the Structure of Judicial Hierarchies,” 1 Institutional Games and the U.S. Supreme Court 173–204.Search in Google Scholar
Cameron, C. M., and L. A. Kornhauser. 2005b. “Decision Rules in a Judicial Hierarchy,” 161(2)Journal of Institutional and Theoretical Economics 264–302.10.1628/0932456054193630Search in Google Scholar
Crawford, V., and J. Sobel. 1982. “Strategic Information Transmission,” 50 (6)Econometrica 1431–1452.10.2307/1913390Search in Google Scholar
Dewatripont, M., and J. Tirole. 1999. “Advocates,” 107 (1)Journal of Political Economy 1–39.10.1086/250049Search in Google Scholar
Dumoulin, L. 2007. L’expert dans la justice : De la genèse d’une figure à ses usages. Paris: Economica.Search in Google Scholar
Emons, W., and C. Fluet. 2009. “Accuracy Versus Falsification Costs: The Optimal Amount of Evidence under Different Procedures,” 25 (1)The Journal of Law, Economics, & Organization 134–156.10.1093/jleo/ewm046Search in Google Scholar
Kartik, N., F. X. Lee, and W. Suen. 2017. “Investment in Concealable Information by Biased Experts,” 48(1)The Rand Journal of Economics 24–43.10.1111/1756-2171.12166Search in Google Scholar
Kim, C. 2013. “Adversarial and Inquisitorial Procedures with Information Acquisition,” 30 (4)The Journal of Law, Economics, and Organization 767–803.10.1093/jleo/ewt012Search in Google Scholar
Kim, C. 2017. “Centralized Versus Decentralized Institutions for Expert Testimony,” 173 (2)Journal of Institutional and Theoretical Economics 209–238.10.1628/093245616X14664894246848Search in Google Scholar
Krishna, V., and J. Morgan. 2001. “A Model of Expertise,” 116 (2)The Quarterly Journal of Economics 747–775.10.1162/00335530151144159Search in Google Scholar
Levy, G. 2005. “Careerist Judges and the Appeals Process,” 36 (2)The RAND Journal of Economics 275–297.Search in Google Scholar
Lim, C. S. 2013. “Preferences and Incentives of Appointed and Elected Public Officials: Evidence from State Trial Court Judges,” 103 (4)American Economic Review 1360–1397.10.1257/aer.103.4.1360Search in Google Scholar
Morris, S. 2001. “Political Correctness,” Journal of Political Economy, 109(2):231–265.10.1086/319554Search in Google Scholar
Ottaviani, M., and P. N. Sorensen. 2006a. “Professional Advice: The Theory of Reputational Cheap Talk,” 126 Journal of Economic Theory 120–142.10.1016/j.jet.2004.08.005Search in Google Scholar
Ottaviani, M., and P. N. Sorensen. 2006b. “Reputational Cheap Talk,” The Rand Journal of Economics 37:155–175.10.1111/j.1756-2171.2006.tb00010.xSearch in Google Scholar
Oytana, Y. 2014. “The Judicial Expert in a Two-Tier Hierarchy,” 170(3)Journal of Institutional and Theoretical Economics 537–570.10.1628/093245614X14017020626304Search in Google Scholar
Palumbo, G. 2006. “Optimal Duplication of Effort in Advocacy Systems,” 60(1)Journal of Economic Behavior & Organization 112–128.10.1016/j.jebo.2003.12.005Search in Google Scholar
Pélisse, J., C. Protais, K. Larchet, and E. Charrier. 2012. Des chiffres, des maux et des lettres. Paris: Armand Colin. 256pages.10.3917/arco.pelis.2012.01Search in Google Scholar
Posner, R. 1999. “The Law and Economics of the Economic Expert Witness,” 13 (2)Journal of Economic Perspective 91–99.10.1257/jep.13.2.91Search in Google Scholar
Posner, R. 2013. Reflections on Judging. Cambridge: Harvard University Press.Search in Google Scholar
Posner, R. A. 1993. “What Do Judges and Justices Maximize? (the same thing everybody else does),” 3 Supreme Court Economic Review 1–41.10.1086/scer.3.1147064Search in Google Scholar
Shavell, S. 2006. “The Appeals Process and Adjudicator Incentives.” 35 Journal of Legal Studies 1–29.10.1086/500095Search in Google Scholar
Sidak, J. G. 2013. “Court-Appointed Neutral Economic Experts.” 9 (2)Journal of Competition Law & Economics 359–394.10.1093/joclec/nht011Search in Google Scholar
Sobel, J. 1985. “A Theory of Credibility.” 52 (4)Review of Economic Studies 557–573.10.2307/2297732Search in Google Scholar
Suurmond, G., O. H. Swank, and B. Visser. 2004. “On the Bad Reputation of Reputational Concerns.” 88 (12)Journal of Public Economics 2817–2838.10.1016/j.jpubeco.2003.10.004Search in Google Scholar
Tomlin, J. T., and D. Cooper. 2008. “Expert Testimony, Daubert, and the Determination of Damages.” 4 (1)Review of Law & Economics 11.Search in Google Scholar
Vertlieb, A., Q.C., and I. Knapp. 2015. “Experts – Judges Need to Bring Real Change.” 73 (5)The Advocate 665.Search in Google Scholar
Yee, K. 2008. “Dueling Experts and Imperfect Verification.” 28 (4)International Review of Law & Economics 246–255.10.1016/j.irle.2008.09.001Search in Google Scholar
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