What US State Court Retirement Policy Tells Us About Aging and Productive Teams – Analysis – Eurasia Review


Faced with extreme old age and even dementia among its judges, some American states have imposed a mandatory retirement age. But this policy can suppress experienced judges who are still productive in their work. This column examines the overall effect of mandatory retirement on court productivity in US states between 1947 and 1994 and finds that court productivity increased by more than 25% after the introduction of mandatory retirement. There may even be a team effect of aging whereby the presence of older judges slows the pace of work in court.

By Elliott Ash *

All good things come to an end, including our careers (Ichino et al. 2007). In the case of judges, this ending may be delayed perhaps too long, as we saw in 2020 with the disruptive and untimely death of Judge Ruth Bader Ginsburg and as documented in a growing body of articles on the issue. of extreme old age (Lat 2011, Goldstein 2011, Kase 2017) and even dementia (ProPublica 2011) in federal courts.

What policies can or should be introduced to address the issue of old age in the justice system? In response to these concerns, many US states have introduced mandatory retirement rules for judges. Thirty-three states have imposed a maximum age of 70, 72, 75, or even 90 (in Vermont). These policies tend to remove judges before they show signs of old age dementia.

But a maximum age also tends to exclude judges who are still productive in their work. In the current Supreme Court, there are three judges (Alito at 71, Thomas at 72 and Breyer at 82) who would have been removed by mandatory retirement at 70. Older judges have more experience and are more familiar with the law (Posner 1996).

Many of the best judges may be removed by a maximum age rule, which could outweigh the productivity benefits of removing judges after their prime. It is important to produce evidence-based policies on this issue given the impact of judges on social outcomes (Dippel and Poyker 2019, Cahuc et al. 2020).

What is the overall effect of mandatory retirement on court productivity? We can harness political experiences in American states to provide empirical evidence on this issue. In recent research (Ash and MacLeod 2020), we measure changes in court performance before and after the introduction of mandatory retirement in the 14 states that introduced such reform in 1947-1994. We measure productivity as the volume of work done and the legal influence of that work.

The main result is illustrated in Figure 1. Productivity increases by more than 25% after the introduction of mandatory retirement. Therefore, the evidence suggests that the removal of the older, less productive judges outweighs the loss resulting from the removal of the more experienced judges.

Figure 1 Effect of mandatory retirement on productivity in state supreme courts

This result is not so surprising in light of another clear trend that we can see in our data – as shown in Figure 2, older judges are less productive than younger judges. Although there is an increase in productivity in the early years, by the late 1950s judges become about 1% less productive with each year of aging. Thus, the pension reform increases the productivity of the courts by replacing the older sitting judges with new, younger judges.

Figure 2 Lifetime change in the productivity of judges

To better understand the link between these results, note that the reforms reduce the average age of the oldest judges by about five years. Multiplying this by the predicted effect of aging on productivity, we would expect court productivity to increase by up to 8% due to the direct effect of the reforms on age distribution. Yet the observed change is 25%, about four times as large. These results indicate a quantitative importance team effect aging, in which the presence of older judges slows down the pace of work on the court.

These findings may inform the debate on policy responses to old age in the federal justice system, where the imposition of mandatory retirement is likely unconstitutional under Article III Section 1 (federal judges “hold office during good behavior). “). Evidence suggests that the use of higher status, while useful in reducing the workload of older judges, may not be sufficient to properly address the issue of judicial aging. Policymakers seeking empirical support for federal reforms, potentially including a constitutional amendment, might turn to this study for help.

More generally, these findings may be useful for leaders seeking to design better retirement policies for highly skilled jobs, particularly in an era of an aging workforce (Carta et al. 2021). Dementia, in particular, is a problem for older workers and the companies that employ these workers (Bloom et al. 2021).

Although we have used the change in mandatory retirement rules to estimate these effects, this does not imply that mandatory retirement is necessarily the optimal rule. It depends on many factors, including counterfactual occupations for potential retirees and new judges.

Thus, the judiciary is a natural laboratory for learning about productivity in professional workplaces. Finding, deciding and justifying the law is a constellation of highly qualified tasks requiring expertise and professionalism, comparable in technicality to those undertaken by doctors and scientists. In addition, judges work alongside peer judges and supervise teams of court clerks, which means that the work has an important social and managerial component.

Unlike comparable private sector professions, however, with judges we can observe labor productivity through comprehensive databases of their decisions and associated written opinions. In our study, we measure productivity as legal influence – the number of times a judge is cited (positively) by future judges in a given year (Choi et al. 2010).

Changes in productivity due to reforms or aging hold true for a variety of alternative measures, including those focusing more on quality and those focusing more on quantity. The analysis of mandatory retirement takes into account any time-invariant factors at the state level, as well as national trends in the productivity of judges. The lifetime productivity effect is relative to other judges in the same court at the same time, and therefore keeps all factors affecting all judges constant.

We can show that neither the effect of the reform nor the effect of aging is determined by the types of cases considered by the judges, by the differences of experience of the judges on the court, by the quality of the clerks or by selective attrition.

*About the Author:

  • Elliott Ash, Assistant Professor of Law, Economics and Data Science, ETH Zurich

The references

Ash, E and W Bentley MacLeod (2020), “Mandatory Retreat for Enhanced Judges on US Supreme Court Performance,” NBER Discussion Paper w28025.

Bloom, D, S Chen, N Counts, R Han, S Malik, A Nandi, B Seligman and D Vigo (2021), “Addressing Alzheimer’s disease and related dementias to real the promise of the UN’s ‘Decade of Healthy Aging’”, VoxEU.org, March 26.

Cahuc, P, S Carcillo, B Patault and F Moreau (2020), “Judge bias in labor courts and firm performance”, VoxEU.org, November 8.

Carta, F, F D’Amuri and TM von Wachter (2021), “Aging Workforce, Pension Reforms and Business Performance,” VoxEU.org, March 16.

Choi, SJ, G Mitu Gulati and EA Posner (2010), “Professionals or politicians: the uncertain empirical case of an elected rather than appointed judiciary”, The Journal of Law, Economics and Organization 26 (2): 290-336.

Dippel, C and M Poyker (2019), “The impact of judicial elections on criminal penalties”, VoxEU.org, June 26.

Goldstein, J (2011), “The Oldest Bench Ever,” Slate.com, Jan. 18.

Ichino, A, G Schwerdt, R Winter-Ebmer and J Zweimüller (2007), “Too old to work, too young to retire? VoxEU.org, November 8.

Kase, A (2017), “When is a judge too old to judge? », Vice.com, July 21.

Lat, D (2011), “What to do with the super-old judges? », AboveTheLaw.com, January 18.

Posner, R (1996), Aging and old age, Chicago: University of Chicago Press.

ProPublica (2011), “Life Tenure for Federal Judges Raises Issues of Senility, Dementia,” January 18.

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