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‹ FEATURED DISCUSSION

January 12, 2005

Justice(s) for Sale

By Alex Tabarrok

Dear David,

My research shows that the average award against out-of-state defendants is much higher in states that select their judges using partisan elections.  In principle, this could be because the average partisan-elected judge is biased but I agree with you that most judges are not biased regardless of how they are selected.  Thus, it must be that a minority of judges in partisan-elected states are heavily biased.   

Indeed, there is some evidence for this in the data - the partisan bias gets larger when attention is focused on cases with the highest awards.  The idea also makes a lot of sense from a lawyer's point of view - why buy more justice(s) than you need?  Instead, buy one or two and do everything you can to make sure that your big cases end up in those courts.  Forum shopping so that you can buy in your own store. 

We are here to talk about judicial selection systems but some of my other research shows that awards are much higher in counties with a lot of minority poverty.  Here then is lawyer alchemy: take one part partisan-elected judges, add one part poor minority-dominated jury, mix with campaign donations, some local charitable work and a colorful lawyer and, voila!, lead cases turn into gold.  It's no wonder that Alabama has traditionally been a tort hell.  (See here for an example of a master alchemist in action and here for another description of the "magic jurisdiction".)

Although I think these factors drive some outrageous awards I also think that legal doctrine and culture provide the atmosphere in which such awards become possible.  It's easier for a judge and jury to grant large awards when strict liability is the norm and multi-billion dollar cases are not uncommon than when negligence is the standard and when a ten million dollar case is still considered big.  Change legal doctrine and some of the factors that I have pointed to will become more benign.

As you point out, the states rarely change their judicial selection mechanisms, although there has been a slow but steady move towards the so-called merit plan, appointment by the governor from a slate of candidates approved by the local bar or other commission.  I see more possibility, however, in moving cases to the Federal courts.

The Class Action Fairness Act, for example, would make it harder for plaintiff's lawyers to keep large cases involving citizens from different states in small, state courts where they have a big home-court advantage.  It would also make it more difficult for plaintiff's lawyers to extort a payoff from the defendant in return for dropping the threat of big plaintiff claims.  (Like most Americans I have been dragged into a number of such cases.) Although am not overwhelmed by these somewhat crude attempts to modify the system - I would prefer a return to common-sense law - but at present I think such changes would be an improvement.

What do you think?

Best

Alex

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