Sticking to Their Principals

Judicial Reputation: A Comparative

Theory. By Nuno Garoupa and Tom
Ginsburg. Chicago: University of Chicago
Press. 2015. Pp. xii, 273.

REVIEWED BY JORDAN M. SINGER*

O
n January 31, 2003, Richard Reid appeared at the John Joseph
Moakley United States Courthouse in Boston. Reid, the British-born
shoe bomber, had pled guilty to eight criminal counts of
terrorism in connection with his attempt to detonate an explosive device on
American Airlines Flight 63 in December 2001. All that was left was the
sentencing.
Reid was defiant. While admitting guilt, he told the court, I think I
ought not apologize for my actions. I am at war with your country. . . . I
put my trust in Allah totally and I know that he will give victory to his
religion. And he will give victory to those who believe and he will destroy
those who wish to oppress the people because they believe in Allah.1 But
for a nation freshly committed to defeating al Qaeda and its ideology of
terror, Reids statement rang hollow. When he concluded, Judge William
Young addressed him directly:
You are not an enemy combatant. You are a terrorist. You are not
a soldier in any war. You are a terrorist. To give you that
reference, to call you a soldier gives you far too much stature.
Whether it is the officers of government who do it or your
attorney who does it, or that happens to be your view, you are a
terrorist.

* Professor of Law, New England Law | Boston. I am thankful to Lawrence Friedman for
helpful comments on an earlier draft.
1 Reid: I am at war with your country, CNN/L. CTR. (Jan. 31, 2003, 11:10 AM),

http://www.cnn.com/2003/LAW/01/31/reid.transcript [https://perma.cc/E95P-FPTY].

27
28 New England Law Review On Remand Vol. 51 | 27

And we do not negotiate with terrorists. We do not treat with

terrorists. We do not sign documents with terrorists.
We hunt them down one by one and bring them to justice.
...
See that flag, Mr. Reid? Thats the flag of the United States of
America. That flag will fly there long after this is all forgotten.
That flag still stands for freedom. You know it always will.
Custody, Mr. Officer. Stand him down.2

The Reid sentencing was an iconic event. A confessed terrorist, at a

moment of peak public salience, challenged the basic principles of
American society and was soundly rebuked. But it was also an exceptional
event. The evidence against Reid was uncontested, the legal and moral
principles clear. An extraordinary set of circumstances empowered a single
judge, in a single moment, to voice the determination and resolve of an
entire nation.3
Rarely do judge, setting, and citizenry converge so neatly. Far more
frequently, a judge must make hardoften unpopularchoices between
competing defensible positions. Should national security concerns
outweigh an individuals right to privacy? To what degree should a
criminal sentence take into account the defendants background? Which
living situation is in a childs best interests? These questions are neither
easy nor routine, but they are part and parcel of the judicial role. Society
without apology or sense of ironyexpects its judges to embody
simultaneously the qualities of retribution and mercy, patience and
expediency, common sense and uncommon wisdom.
An effort to explain these tensions lies at the heart of Nuno Garoupa
and Tom Ginsburgs recent book, Judicial Reputation: A Comparative Theory.4
Garoupa and Ginsburg argue that judges are most usefully seen as agents
of society. In that capacity, judges are expected to make essentially the
same decisions that the greater society would make on its own, given
sufficient expertise and resources. They are expected to do so in both
criminal and civil matters, in high-profile cases as well as common, low-

2 See id.; see also Hon. William G. Young, A Lament for What Was Once and Yet Can Be, 32 B.C.

INTL & COMP. L.J. 305, 32830 (2009) (containing the entire sentencing statement and
providing additional historical context).
3 The judges words would resonate more than a decade later. On April 15, 2013, the Boston

marathon bombings left three (eventually four) dead, scores wounded, and a city on edge.
With the perpetrators still at large two days later, and struggling over how best to address the
events with my Civil Procedure students, I chose to begin class by reading aloud the relevant
part of the Judge Youngs statement at the Reid sentencing. The calm and confidence in his
words provided a healing moment for us all.
4 NUNO GAROUPA & TOM GINSBURG, JUDICIAL REPUTATION: A COMPARATIVE THEORY (2015).
2017 Sticking to Their Principals 29

salience disputes. And they are expected to do it every single time.

This, of course, is demanding the impossible. No judicial decision can
be perfectly congruent with the preferences and interests of a modern
society. For one thing, society is not a unified actor but an aggregate of
individuals and groups with varied interests and preferences.5 Sometimes
these interests are in direct competition. At other times, interests that are
consistent in the abstract can conflict in practice (for example, by forcing a
choice between accuracy and efficiency, or between majority rule and
minority rights). Still, the judge must choose between competing positions,
and no matter how contemplative the process or detailed the explanation,
his choice will necessarily earn praise from some quarters and scorn from
others. The reality of judging in a heterogeneous society is that almost any
decision will leave some members of the community unsatisfied.
And this assumes that judges actually desire to match community
expectations. In the real world, judges in fact may do more or less than
society requests of them, a problem known as agency cost. One form of
agency cost, labeled adverse selection, arises when the preferences of the
judiciary [are] isolated from those of society.6 Under these circumstances,
judges whose perceptions, preferences, and beliefs are out of step with the
communities they serve are tempted to go beyond the principal-agent
relationship and substitute their own judgment for that of the greater
society. A second form of agency cost, moral hazard, occurs when the
judiciary is not sufficiently incentivized to perform well and therefore
prefers to expropriate from the principal some of the benefits of its
performance.7 That is, judges shirk their responsibilities, expand judicial
doctrine to their benefit but not that of society, or even engage in wholesale
corruption. Collectively, adverse selection and moral hazard erode the
efficiency and effectiveness of the judiciary, by drawing judges away from
the public interest that administration of the law is supposed to serve.
Garoupa and Ginsburg explain that societies try to mitigate agency
costs (and realign judicial decisions to prevailing social preferences) by
subjecting their judges to formal institutional controls. One approach is to
vet potential judges carefully before they take the bench, to assure their
competence and fidelity to the general community agendaa form of ex
ante control. As the authors note, this type of control is most commonly
associated with so-called recognition judiciaries, in which judges move to
the bench only after many years of demonstrating high skill and
competence as practicing attorneys. Judges of this type are often selected

5 Id. at 3.
6 Id. at 60.
7 Id.
30 New England Law Review On Remand Vol. 51 | 27

by a nominating commission, a form of judicial council designed to include

the perspectives of a range of salient audiences.8 Candidates qualifications
are carefully reviewed in advance of selection, and most candidates
understand and expect that a judgeship will be the capstone of their legal
careers. Extensive use of such front-line controls makes the judges
preferences and skills more transparent from the outset, lowering the risk
of adverse selection.9 As a consequence, recognition judiciaries are afforded
more substantial discretion and independence once they take the bench.
An alternative approach to reducing agency cost is to supervise judges
heavily after they are hireda form of ex post control commonly found in
the career judiciaries that populate civil law jurisdictions throughout
Europe and Latin America. Judges in career judiciaries more closely
resemble traditional bureaucrats, hired early in their legal careers and
subjected to regular training, performance evaluation, and hierarchical
supervision to assure the quality of their work. Career judiciaries present
less of a gamble for the community and require less up-front vetting, since
judges can be socialized over time to embrace societys values, routinely
reviewed and supervised while on the bench, and even terminated for poor
performance.10
Ex ante and ex post judicial controls are not mutually exclusive, and
Garoupa and Ginsburg keenly demonstrate that many societies have
adopted components of both models. The United States federal system, for
example, is in many ways a classic recognition judiciary, with its lifetime
appointments and robust vetting system for Article III judges. But these
same judges undergo regular and extensive training and socialization
during their judicial tenurea hallmark of a career judiciary.11 The federal
system also employs thousands of jurists who operate primarily in the
career judiciary mold. Federal magistrate judges, bankruptcy judges, and
administrative law judges (ALJs) hold defined terms of office, are
considered employees of Congress, and are subject to regular performance
reviews and established bureaucratic controls.12 A single system

8 Garoupa and Ginsburg define judicial councils broadly as institutions in which multiple

stakeholders come together to govern the judiciary, taking on various tasks that might include
selecting judges, disciplining them, managing them, and promoting them. Id. at 98.
9 See id. at 65.
10 GAROUPA & GINSBURG, supra note 4, at 65.
11 See, e.g., Robert G. Bone, Judging as Judgment: Tying Judicial Education to Adjudication

Theory, 2015 J. DISP. RESOL. 129 passim (2015) (discussing the development and spread of
judicial education programs); Robert Carp & Russell Wheeler, Sink or Swim: The Socialization of
a Federal District Judge, 21 J. PUB. L. 359 passim (1972) (discussing processes of socializing
federal district judges into the profession); Beverly Blair Cook, The Socialization of New Federal
Judges: Impact on District Court Business, 1971 WASH. U. L.Q. 253 passim (1971) (same).
12 While differing in their powers, responsibilities, and terms of office, magistrate judges,
2017 Sticking to Their Principals 31

dynamically integrates both models.

The same blending can be found in civil law jurisdictions. For example,
many countries which utilize career judiciaries have established
constitutional courts whose judges are authorized to undertake judicial
review of ordinary legislationa process incompatible with the work of
an ordinary court in a civil law system.13 The integration of these
functions in a single system is not easily explained by local history or
culture. However, such integration does make sense from the perspective
of principal-agent theory. Certain judicial functions (like constitutional
review) naturally lend themselves to a recognition-style system and other
functions (like routine application of administrative regulations) benefit
from the more bureaucratic nature of a career judiciary.
The worldwide adoption of ex ante and ex post controls, however, has
not fully resolved the problems of moral hazard and adverse selection. As
in any principal-agent relationship, a society must constantly monitor a
judges actions to assure that they reasonably conform to its wishes and
expectations. Some components of judging can be assessed objectively,
such as the time a judge takes to dispose of a case.14 Other aspects of the
judicial role, howevera judges work ethic, the quality of a decision, or
the confidence that court users place in the judges abilitiesrequire
subjective evaluation and are all but impossible to monitor directly.15
Societies fill this gap, Garoupa and Ginsburg explain, through a form of
indirect monitoring that relies on judicial reputation. It is reputation that
permits the larger society to part the curtains on day-to-day judicial
activity, and judicial concerns about reputation that temper the types of
behavior that contribute to agency costs.
The concept of judicial reputation is central to Garoupa and Ginsburgs
argument, and must be unpacked with some care. The authors define

bankruptcy judges, and ALJs are all broadly Article I judges in that their positions were
established or authorized by Congress, not Article III of the Constitution. See 28 U.S.C. 152
(2005) (regarding the appointment and retention of bankruptcy judges); 28 U.S.C. 631 (2010)
(same for magistrate judges); Administrative Procedure Act, Pub. L. 79-404 (1946) (same for
ALJs).
13 GAROUPA & GINSBURG, supra note 4, at 53.
14 See, e.g., Civil Justice Reform Act, 28 U.S.C. 476 (2012) (requiring United States District
Courts to report, by judge, the number of motions pending over six months and the number
of cases pending over three years); MARIA DAKOLIAS, COURT PERFORMANCE AROUND THE
WORLD: A COMPARATIVE PERSPECTIVE 918 (1999) (examining case disposition rate in
commercial courts in eleven countries).
15 See, e.g., Canice Prendergast & Robert Topel, Discretion and Bias in Performance Evaluation,
37 EUR. ECON. REV. 355, 35557 (1993) (discussing subjective performance evaluation and
associated challenges).
32 New England Law Review On Remand Vol. 51 | 27

reputation as the stock of private assessments of past behavior.16 These

assessmentswhich reflect[] the views of society or public opinion in
general toward the judiciary but also the interests of the relevant particular
constituencies with special power over the courts17coalesce into a
judiciarys collective reputation. Judges can also develop individual
reputations, which take into account not only the views of the public and
special constituencies, but also the private views of court insiders such as
clerks, staff, practicing attorneys, and judicial colleagues.
Societies typically prioritize either individual or collective reputation,
and the choice can influence judicial behavior. American society, for
example, places heavy emphasis on the individual reputations of judgesa
number of judges are known by name and rise to public prominence
through their professional accomplishments, public activities, or
involvement with a highly salient case. Orders and opinions are personally
signed, dissenting views are commonly aired, and trials at the state level
may be televised. This emphasis on individual reputation heightens
pressures on all judges in the American system to become known and
respected in their own right: name recognition and professional esteem are
needed to maintain positions in elected systems, advance to a more
prominent bench in appointive systems, and gain influence in the legal
community. By contrast, in Japanese society the judge is essentially
faceless.18 Judges are hired and socialized into the judiciary at a relatively
young age, are administratively rotated to different courts every two to
three years, and do not sign opinions. This accentuation of the collective
leads Japans judges to internalize values like decisional uniformity and
unanimity, relative anonymity, and communal quality controls.
But even where society privileges one dimension of judicial reputation,
judges mustand doattend carefully to both. As Garoupa and Ginsburg
note, reputation requires team production: judges have to care about the
collective reputation of the judiciary in order to maximize their individual
reputations.19 In one interesting and extended study in the book,20 the
authors offer evidence that judges sitting on constitutional courts in
Europe, East Asia, and Latin America frequently rendered unanimous
decisions in their respective courts early years, even in the face of internal
dissent. The reason was to build the courts credibility both with lower
court judges and the general public. The authors explain, In order to
advance their ideological agenda, constitutional judges need to have

16 GAROUPA & GINSBURG, supra note 4, at 19.

17 Id. at 23.
18 Id. at 4546.

19 Id. at 188.
20 See id. at 14166.
2017 Sticking to Their Principals 33

influence over other high courts, requiring them to sacrifice immediate

ideological goals in order to demonstrate unity. They sometimes invest in
collective reputation, sacrificing individual reputation, in the early years
after creation of the court.21 Put another way, developing a strong
collective reputation outweighed individual preferences because collective
reputation is the currency that buys courts legitimacy and resources.
Garoupa and Ginsburgs composite theory of agency and reputation
provides a rich interpretation of the relationship between judges and the
public they serve. In particular, their decision to situate judicial activity in a
principal-agent framework stands out as the books most enduring
contribution. Principal-agent theory offers an appealing, if high-level,
explanation for the wide variation in judicial systems and judicial behavior
across (and within) countries. The standard account for the differences
between common law and civil law systems, which looks primarily to
historical and cultural factors, does not adequately explain the robust
presence of blended judiciaries across the world. Garoupa and Ginsburgs
account largely does. Similarly, although many theories of judicial
behavior have been proposed in recent decades,22 none accounts as fully for
agency costs and signaling as does Garoupa and Ginsburgs approach. The
principal-agent framework places existing theories in a fuller context and
meaningfully advances the discussion.
Closer to home, the principal-agent model also provides helpful insight
into the historical debates over the proper role of the judge in the United
States. The propriety of life terms and salary protection for Article III
judges has been the subject of vigorous discussion since the founding, with
one side asserting that judges must be free to exercise their discretion
within reasonable means, and the other seeking closer judicial allegiance to
the preferences of the community.23 Similarly, while the two most common
methods of choosing state judgespopular election and merit selection
operate via fundamentally different procedures, each was born out of the
desire to make judges more accountable to the people directly, and less
accountable to (and prone to influence by) vested political interests.24
Although these debates have always been couched in terms of judicial
independence and accountability, they can be seen more broadly as
concerning the level of discretion that society should afford its agent-

21 Id. at 165.
22 For a discussion and critique of several such theories, see RICHARD A. POSNER, HOW
JUDGES THINK 1956 (2008).
23 Compare THE FEDERALIST NO. 78, with ANTI-FEDERALIST NO. XIXII (Brutus).

24 See JED HANDELSMAN SHUGERMAN, THE PEOPLES COURTS: PURSUING JUDICIAL

INDEPENDENCE IN AMERICA passim (2012).

34 New England Law Review On Remand Vol. 51 | 27

judges.
The authors should also be commended for their efforts to test
empirically many of the theories they present. Working from original data
sets, Garoupa and Ginsburg attempt to demonstrate, for example, that
hybrid systems of career and recognition judiciaries are common and
reflect that certain areas of the law are better served by one type of judge
over another,25 or that conflicts between constitutional and supreme courts
(in jurisdictions that have both) are more likely to arise where there is court
instability.26 The structure of these empirical studies is useful, although the
findings themselves are preliminary and of limited import. The authors
admit as much, noting that one data set allows only a crude empirical test
of our theory27 and that the paucity of data in another presents a
challenge to conducting serious estimates.28 Still, the empirical work
presented in Judicial Reputation further stimulates the discussion about the
ways in which judiciaries might be more meaningfully assessed beyond
tired efficiency metrics29 and overly simplistic attitudinal proxies.30
Finally, Garoupa and Ginsburgs take on the role of judicial reputation
as an additional check on agency cost is eminently sensible and clearly
presented. But here, for the first time, the reader wishes for more. By
placing judicial reputation at the center of their comparative theory,
Garoupa and Ginsburg implicitly promise an especially robust
examination of its formation, contours, and challenges. Instead, the
ensuing discussion of reputation comes across as underdeveloped and at
times unrealistic, especially in comparison to their initialand powerful
exposition on agency.
Part of the problem is an oversimplified presentation of reputation as
an informational commodity. For example, Garoupa and Ginsburg employ
the simplifying assumption that reputation is a noiseless signal of
judicial quality; that is, they presume that reputation maps accurately
onto judicial quality.31 This assumption is significant and troubling,

25 See GAROUPA & GINSBURG, supra note 4, at 6873.

26 See id. at 15455.
27 Id. at 67.
28 Id. at 155.

29 As one group recently noted, Excellent courts systematically measure the quality as well

as the efficiency and effectiveness of the services they deliver. THE INTERNATIONAL
FRAMEWORK FOR COURT EXCELLENCE 29 (2d ed. 2013), http://courtexcellence.com/~/
media/Microsites/Files/ICCE/The%20International%20Framework%202E%202014%20V3.ashx
[https://perma.cc/7VLE-2VA6].
30 Theodore W. Ruger, Chief Justice Rehnquists Appointments to the FISA Court: An Empirical

Perspective, 101 NW. U. L. REV. 239, 248 (2007).

31 GAROUPA & GINSBURG, supra note 4, at 23.
2017 Sticking to Their Principals 35

because reputation is often a poor reflection of reality. Sometimes

reputation masks important professional flaws or caricatures the judges
professional contributions, as when a judges supporters and admirers
mythologize the judges abilities or character to external audiences.32 At
other times, a public reputation shaped by media coverage may not be
consistent with a reputation among more closely affiliated audiences, or
with the reality of the judges skills.33 Moreover, even accurate reputations
can become stale: What was once thought to capture a judges
professional character and personality may not hold up over time.34 As
judges grow professionally in office, confront new situations and changing
social circumstances, and learn from each other, their approaches to the
law and the work of judging may change in ways both obvious and subtle.
The authors recognize that in the real world reputations are noisy,
but dismiss the concern for the sake of theory: all we need to assume is
that noise does not vary systematically across the institutional structures
that we analyze.35 Perhaps. But reputational noise is bound to be affected
by cultural and sociopolitical factors, such as the influence of the media,
the speed of social communications, the prominence of the bar, and how
well-established a judge or court is in the community. Garoupa and
Ginsburg are entitled to their simplifying assumptionsno theory is
possible without thembut a foundational assumption about the noiseless
character of reputation necessarily raises some eyebrows.
Some of the assumptions about why judges seek reputation, or use
reputation, are likewise too sweeping. For example, Garoupa and Ginsburg
note that many states in the U.S. continue to elect their judges, and suggest
that elections should enhance [judicial] investment in individual
reputation, as judges seek to signal their views both in the campaign

32 The most prominent example of this phenomenon was the so-called House of Truth, a
close-knit group of law clerks and admirers of Oliver Wendell Holmes, Jr., who facilitated his
canonization in the American judiciary in the early part of the twentieth century. See I. Scott
Messinger, The Judge as Mentor: Oliver Wendell Holmes, Jr., and His Law Clerks, 11 YALE J.L. &
HUMAN. 119, 12223 (1999); see also Brad Snyder, The House That Built Holmes, 30 L. & HIST.
REV. 661, 66163 (2012). Modern examples of reputational bootstrapping also abound. See, e.g.,
Brianne J. Gorod, A Big Year at the Supreme Court, 18 GREEN BAG 2D 391, 399 (2015) (noting
developments such as the popular Notorious RBG moniker for Justice Ginsburg, and a new
play about Justice Scalia entitled The Originalist).
33 See, e.g., S.L. Alexander, The Trial of the Century, 92 JUDICATURE 245, 24546 (2009) (noting
that California Superior Court Judge Lance Ito, the worldwide poster boy for how not to
conduct a criminal trial, was a highly regarded jurist before the O.J. Simpson murder trial).
34 Jordan M. Singer, Gossiping About Judges, 42 FLA. ST. U. L. REV. 427, 458 (2015).
35 GAROUPA & GINSBURG, supra note 4, at 23.
36 New England Law Review On Remand Vol. 51 | 27

process and while serving as incumbents.36 That may be the case in the
small percentage of contested, partisan elections at the state level, nearly all
of them involving seats on the appellate bench. But in the vast majority of
judicial elections the incumbents are unopposed, either by design
(retention elections) or fortuity (no challenger emerges).37 Under these
conditions, where reelection or retention is at risk only if the voters are
made aware of specific concerns about a judge, most judges will seek to
minimize the force of reputation, not enhance it.38 Moreover, even in hotly
contested elections, judges and judicial candidates typically seek to
distinguish themselves from opponents only on grounds related to
professional fitness; that is, signals about the candidates views are
deliberately circumscribed to avoid pronouncements related to substantive
law or policy.39
The authors theory of reputation would also have been usefully
augmented by some discussion of the role of courts as courts in influencing
the reputation of their constituent judges. Garoupa and Ginsburg too often
conflate courts with the judges who comprise them, referring repeatedly to
judicial organization rather than court organization. Though there is
overlap between the concepts, court organization is broader. Today a great
many courts worldwide are sophisticated organizations with independent
administrators and some form of internal bureaucracy.40 Through their
administrative structure, courts seek resources, make management
decisions, and coordinate with public and private actors. Judicial
reputation is directly relevant to these tasks, especially as they pertain to
obtaining funding and clarifying jurisdiction. This form of organizational
or institutional reputation is qualitatively different from collective
reputation as Garoupa and Ginsburg use it; it is less about collective

36 Id. at 45.
37 See Bert Brandenburg & Roy A. Schotland, Justice in Peril: The Endangered Balance Between
Impartial Courts and Judicial Election Campaigns, 21 GEO. J. LEGAL ETHICS 1229, 1234 (2008).
38 See Brian P. Anderson, Judicial Elections in West Virginia: By the People, for the People or

By the Powerful, for the Powerful? A Choice Must Be Made, 107 W. VA. L. REV. 235, 25556 n.121
(2004) (citing studies showing that only 13% of judicial incumbents in retention elections
bother to formally campaign for their seats).
39 For a detailed case study on this phenomenon, see Jordan M. Singer, The Mind of the

Judicial Voter, 2011 MICH. ST. L. REV. 1443, 147485 (2012) (discussing the 2011 state supreme
court election in Wisconsin).
40 See, e.g., KARIM BENYEKHLEF ET AL., COMPARATIVE ANALYSIS OF KEY CHARACTERISTICS OF

COURT ADMINISTRATION SYSTEMS passim (2011) (describing administrative structures in seven

common law countries). In connection with the growing interest in court administration
worldwide, the International Association for Court Administration was founded in 2004. See
INTERNATIONAL ASSOCIATION FOR COURT ADMINISTRATION, www.iaca.ws [https://
perma.cc/RMG2-PKU6] (last visited Feb. 21, 2017).
2017 Sticking to Their Principals 37

perceptions of the judges themselves and more about perceptions of how

the court system operates. And in fact, sometimes a courts reputation can
strain or overshadow even the collective reputation of its judges, as when
the administrative reputation of a centralized court system (as personified
by its chief judge) predominates over the professional individual or
collective reputations of the other judges on the court.41
As these comments suggest, judicial reputation is nuanced,
multidimensional, highly contextual, and ever-changing. It is no doubt
difficult to capture comprehensively.42 And perhaps it is partially due to
these descriptive challenges that the authors discussion of reputation feels
less complete, and in the end somewhat less important, than their
application of a principal-agent framework to help explain judicial
structure and monitoring. Indeed, Garoupa and Ginsburgs principal
theory is ultimately a theory about principals.43 That is a valuable
contribution on its own, but perhaps not the one the books title would lead
the reader to expect.

41 See THOMAS A. HENDERSON, RANDALL GUYNES & CARL BARR, ORGANIZATIONAL DESIGN
FOR COURTS 33 (1980).
42 Indeed, the formation and dynamics of reputation itself are still not fully understood,

and remain the subject of considerable research by psychologists and sociologists. For one
example of recent scholarship, see Priscilla Murphy & Dawn R. Gilpin, Complexity Theory and
the Dynamics of Reputation, in THE HANDBOOK OF COMMUNICATION AND CORPORATE
REPUTATION 16680 (Craig E. Carroll ed., 2015).
43 The authors state no fewer than four times that their focus is on understanding the

judicial system through the lens of the agency model. See GAROUPA & GINSBURG, supra note 4,
at xi (This book is an effort to understand the structure of judicial systems around the world
. . . . We show that [the agency] model can explain a good deal of variation that we
observe . . . .); id. at 7 (The object of our book is to explain how judges respond to the
incentives provided by different audiences and how legal systems design their judicial
institutions to calibrate the locally appropriate balance between audiences.); id. at 73 (We
suggest that the design of judicial institutions responds to particular agency problems . . . .);
id. at 187 (Our basic argument in this book has been that judges are agents of society, hired to
perform a set of tasks.).