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January 16, 2005

Babies and Bathwater

By David Rottman

Dear Alex,

I admire the thoroughness of your research on patterns in tort awards, but I am far from convinced that it begins to support the changes to our judicial institutions and legal tradition that you advocate. There certainly is some distance from your data to speculation that a minority of “heavily biased” state judges both exists and that, through manipulation by plaintiffs’ lawyers and the lure of their campaign contributions, comes to preside over high dollar tort jury trials with out-of-state defendants in a subtle manner that transfers their bias to jurors. The concerns you raise about demographic influences on verdicts are best examined through comparisons of counties, within and across states. What are tort awards like in the courts of wealthy suburbs with large concentrations of corporate executives and subscribers to those business magazines that continuously editorialize about what are alleged to be “out of control” jury awards?

The real issue that I want to raise is the wisdom and integrity of the current proclivity to tinker with courts jurisdiction and legal doctrine in order to promote favorable outcomes for one class of litigants in tort or any other category of cases. The desire to switch jurisdiction from state to federal courts is a part of that mentality, as is the desire to modify the specific aspects of a state’s tort doctrine to achieve such an outcome. I am not arguing against reform (like you, I am dismayed by the letters that arrive from lawyers I have never heard of informing me that I am the beneficiary of a class-action suit to which I did not know I was a party), but I am perplexed at the zeal some have to alter the roles of state and federal courts in this country and fundamentally change the very nature of our tort law. How are we to know where to start in making these adjustments and where to stop before the checks and balances no longer align and the playing field is no longer level? Does this strike you as an overreaction?

Social science research is an uncertain guide in such an enterprise. It points to a variety of patterns of systematic unfairness, not to a single direction for reform. For example, another carefully designed and executed program of civil justice research finds systematic bias against plaintiffs in the decisions of federal appellate courts (Clermont and Eisenberg’s, “Anti-Plaintiff Bias in the Federal Appellate Courts”, Judicature, November-December 2000 reports some of that research). A more general example is the research tradition that highlights the litigation advantages that accrue to “repeat players” in the system and to those with the greatest economic resources (the persuasiveness of that research is usefully critiqued in a symposium sponsored by Law and Society Review, “Do the ‘Haves’ Still Come Out Ahead?” that appeared in Vol. 33, No. 4, 1999). Do you see a clearer role for research in pointing the way to a fairer judicial process?

As an aside, I also note the practical limitation to a path to reform that seeks to remove whole categories of cases from the state courts. About 10 times more civil jury trials take place in state courts than take place in the federal courts.

Where does all this leave judicial selection? The changes states have made in selection methods over recent years has been away from partisan to non-partisan methods, not toward a merit plan (but note that the Constitutionality of non-partisan elections is part of the White remand currently before the 8th Circuit). The ABA and other influential organizations now urge the adoption of appointive systems (see their Justice in Jeopardy report). And last year the New York Commission to Promote Public Confidence in Judicial Elections offered a novel proposal that would screen the qualifications of judicial candidates without restricting the right of any candidate to run if they and their party so desire.

I find myself a somewhat reluctant proponent of state-by-state reform to improve judicial selection. As a matter of principle, I see no other course consistent with our federal system of government and the distinctiveness of the balance each state has struck to keep its judiciary accountable but independent. As a practical matter, I see little prospect that voters will give up the right to vote for their judges.

A 2000 National Summit on Improving Judicial Selection offered 20 recommendations in a Call To Action that, if implemented, would make a difference. The recommendations include the creation of independent judicial performance evaluation processes, public financing, and steps to better inform voters about judicial candidates. All 20 recommendations will soon be reviewed for possible revision in light of the post-2000 experience.

I described myself as a reluctant proponent of gradual reforms. The 2004 judicial elections by and large argue for urgency and history does not promise swift returns to would-be reformers of judicial selection. Last July, The Economist ran a story on those elections, headlined “Guilty, Your Honour?”

“There remains the old question: should judges be elected at all, rather than appointed? Back in 1906 Roscoe Pound, a scholar at Harvard Law School, started a campaign to have judges appointed by saying: “Putting courts into politics, and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench.” When he spoke, eight in ten American judges stood for election. Today, the figure is 87%. Americans are still reluctant to accept that politicians should be chosen by the people, but not judges.” (July 24, 2004, 28-29)

I close by asking if you can see a more expeditious route toward the reforms that I believe for the most part we both seek?



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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.