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Publication Rules and Judicial Candor

Florian Baumann and Frank Fagan

While unrestricted publication of judicial decisions and other actions can increase information for future litigants, and more generally, the public, we analyze two models that account for strategic changes to candor for judges who know that their identities can be associated with their actions. The basic model shows that unrestricted publication increases information relative to restricted publication when the level of conflict between parties is low, the information advantage obtained from candid action is low, variation in judicial bias is high, and the share of confident judges is high. Otherwise, unrestricted publication can decrease information when judges reduce candor in order to avoid perception of bias. We further demonstrate that unrestricted publication can lead judges to forgo decisions and actions that are unbiased, but difficult to explain, for ones that are biased.

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