ELECTIONS AND SELECTIONS
How Judicial Elections Bias the Courts
By Alex Tabarrok
My research on judicial elections was provoked by this remarkable quote from retired West Virginia Supreme Court judge Richard Neely:
As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone's else money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me. Neely (1988, 4).
A typical plaintiff sues where he lives while a defendant may be a corporation that is headquartered out-of-state, perhaps even out-of-country. Neely suggests that in these cases, elected judges will be biased towards plaintiffs - high awards are a judge's way of performing constituency service.
Furthermore, where do elected judges get most of their campaign funds? Answer: from lawyers. Plaintiff's lawyers usually get the bad rap but even defense lawyers like to see judges who grant large awards because this drives up the demand for their services. (A defense lawyer wants a small award in his case but he wants to operate in a field where awards in general are high.)
Eric Helland and I put these ideas to the statistical test. Using a sample of more than 50,000 tort cases, we found that the average award against an out-of-state corporation relative to an in-state corporation is much higher (between two and four hundred thousand dollars higher) in states that select their judges using partisan elections than in states using appointment or other systems. (Our paper from the American Law and Economics Review can be found here; email me if you can't access the journal's website and would like a copy.)
Our research suggests that judges respond to incentives just like other politicians - which raises the question, What sort of incentive structure do we want judges to have? Appointment? Election? Life-time or short-term tenure? Should campaign finance laws be stronger for state-court judges than for state representatives? Should we rely on Federal judges more than State judges? Our research focuses on torts but these issues also have implications for criminal law and the role of judges in Federalism.
I'm looking forward to your insights.
Judicial Reform is Not for the Short-Winded
By David Rottman
It is a pleasure to join you in this dialogue on what can be done to improve judicial selection. That improvements are needed, no one can doubt. The 2004 judicial elections demonstrated again how far we have moved from the days—which rather strikingly encompass the years included in your provocative research on tort awards—when judicial elections “were as exiting as a game of checkers . . . played by mail.” Last year, one individual contributed over $2 million to a single West Virginia judicial race (the previous record for an individual’s contribution appears to have been $200,000 in a 1982 Texas race). Also last year, two candidates running for an open Illinois Supreme Court seat spent a combined $9 million (not including political party and third-party contributions), more than was spent in most U.S. Senate races. Afterwards, the winner reflected on the spending: “That’s obscene for a judicial race. What does it gain people? How can people have faith in the system?”
In replying to your message, voicing my own point of view and not that of my employer or any other organization, I will focus on the hurdles to judicial selection reform. In doing so, I want to be optimistic but realistic. I hope that our subsequent exchanges can move on to a consideration of what should be done and what can be accomplished.
First, I note that the nature of the incentives for judicial behavior embedded in any judicial selection system appear to be very subtle, too subtle in my view to point a clear path to reform. Let me take an example from the criminal justice area. Sentencing decisions by Pennsylvania trial judges “become significantly more punitive the closer they are to standing for reelection.” Wanting to avoid giving a sentence that might draw attacks as soft is an understandable incentive, yet these are judges are facing retention elections (in which they run against their own record, not an opponent) and come at the end of a ten-year term. See G. Huber and S. Gordon, “Accountability and Coercion: Is Justice Blind When it Runs for Office” American Journal of Political Science, Vol. 48, No. 2, April 2004: (p. 261). It is arguable that any appointive system short of life-tenure is likely to exhibit the same tendency to become more punitive if there is the prospect of reappointment or promotion.
The incentives facing the judges who presided over tort trials in a partisan election state seem subtler still. The disadvantage experienced by out-of-state defendants is attributed to subtle cues judges give in, for example, jury instructions or rulings on evidence. But trial judges in most partisan-election states rarely faced an opponent in the 1980s and 1990s; many still run unopposed, and few contested races attract large contributions. For example, in partisan- election State Texas, of 481 sitting trial judges in 1993, over 80 percent were unopposed in both the primary and general election when they first ran. Of judges who initially were appointed, more than half had never had an opponent in either the primary or a general election. In Arkansas another (until 2000) partisan election state, between 1976 and 1988, 88 percent of judicial candidates ran unopposed. [Sources available on request].
Arkansas and Texas also demonstrate the variability across the country, and also by city and region within states as well, in the reliance judicial candidates place on lawyer campaign contributions. The ABA Commission on Lawyer Contributions to Judicial Candidates (Table 2 in Appendix 3) in 1999 summarized the limited (relative to appellate races) data on contributors to trial level races. Between 1976 and 1990, lawyers contributed 10 percent of the funding for Arkansas judicial races. During much the same period, 69 percent of contributions to candidates in Dallas County, Texas District Court races came from lawyers or law firms. The Commission summarized its findings in this manner: “often attorneys account for large proportions, often even over 75% of the contributions to judicial candidates; but it is also true that often attorney contributions total only a minor fraction.” Even for state Supreme Court races the dominance of lawyers as campaign contributors cannot be assumed. In a five state study (Alabama, Idaho, Montana, Texas, and Wisconsin) between 1994-1999, for example, “lawyers and lobbyists” accounted for 23 percent of all campaign contributions (The National Institute on Money in State Politics, “Sources of Judicial Campaign Funds—A Brief Overview”, 2002).
It seems likely that many if not most of the judges presiding over tort trials in at least some partisan election states do not experience a direct and strong motivation to reward in-state plaintiffs in exchange for lawyer contributions. For a non-economist, the tendency might be to locate the explanation the differential treatment by recourse to a set of shared expectations that emerge among judges operating in a partisan election system. I do not put this “cultural” approach forward as offering a satisfactory explanation of why some litigants might be treated differently than others. I merely note that the behavior of judges comes in response to diverse and cross-cutting cues. Indeed, perhaps the best book on the topic is Lawrence Baum’s The Puzzle of Judicial Behavior (University of Michigan Press, 1997). [By the way, my colleague, Gene Flango, has written about the possible role of legal culture in a related context. See his article, “Attorneys’ Perspectives on Choice of Forum in Diversity Cases, published in Akron Law Review Vol. 25, No. 1, 1991].
Second, I note that judicial selection reform necessarily proceeds on a state-by-state basis. Each electoral system is unique, a compromise between holding elections for judicial office and steps that ensure that judicial elections are different from those held for the political branches. Each state that elects its judges adopted by Constitutional provision or statute limitations on how judicial candidates can campaign and how judges can act in office. Provisions include uniquely lengthy terms of office, prohibitions against running for non-judicial office while serving as a judge, and “blind” campaign fundraising in which the judicial candidate is shielded from knowing the names of their financial supporters.
Judicial elections are different because the role of judges is distinct from legislators or executive branch officers. Undoing a historical compromise, again unique to each state, and often by level of court or to specific regions within states, is not to be undertaken lightly. Simply put, we should not tear down fences before we know the reasons they were built. An implication of this argument is that there the development of national models for judicial selection, while not unworthy activities, is unlikely to be a major force for change in how judges are selected.
Third, no state that has chosen to elect its judges has ever subsequently opted for a fully appointive system for its judiciary. To shorten a reply clearly headed for undue length, I quote the recently expressed views of the distinguished historian of American law, Kermit Hall: expresses the dilemma were face in this way.
"Critics of judicial elections have created what they call the Rule of 80. It holds that: 80 percent of the electorate does not vote in judicial elections; 80 percent is unable to identify candidates for judicial office; 80 percent believes that when judges are elected, they are subject to influence from their campaign contributors; and finally and most importantly, 80 percent of the public favors electing judges."
This is a heavy dose of realism. It is frustrating to believe than only incremental change is feasible, given the magnitude of what so many agree needs to be changed urgently.
It was New Jersey’s Chief Justice Vanderbilt, back in the 1930s, who offered the truism that “judicial reform is not a sport for the short-winded”. But then I am by virtue of my place of employment and work experience, something of an insider. The entry of economists into the study of judicial selection and behavior is welcome not just for offering us new theories and data, but also perhaps a more optimistic reading of the potential for change. So before going into any details about the kinds of reform programs that seem feasible to me, I would be grateful for your views on the breadth of changes we can hope to accomplish in responding to the demonstrated problems associated with judicial elections.
Justice(s) for Sale
By Alex Tabarrok
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?
Babies and Bathwater
By David Rottman
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?
Principles of reform
By Alex Tabarrok
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?
This one I can answer pretty well. I don't have data on subscribers to business magazines but let's take the ten-percent of counties with the highest per-capita income, the average award in those counties is $776,475.* Now let's take the ten-percent of counties with the highest rate of poor blacks, the average award in those counties is $877,838. Amazingly, it is better to sue in a very poor, probably rural, out-of-the-way county than in a wealthy, urban county where the typical injured person has much higher wages. Now here is the real shocker, let's look at the average award in the top ten percent of counties with the highest rate of non-black, non-hispanic poor, it's just $389,601.
Like you, I am not very happy with tinkering with the system to produce a given result. On the other hand, you write as if tort reformers are intent on upsetting a delicately balanced equilibrium.
I am perplexed at the zeal some have to...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?
But tort law has already undergone fundamental change and it is continuing to change today! Even ten years ago a suit against McDonald's for making people fat would have been laughed out-of-court but that is no longer true (see, for example, the web page of banzai Banzhaf!). Whatever you think about the virtues or vices of the current system it is not well described by checks and balances and level playing fields - think rather of howling winds, pounding rain and a storm-tossed ship nearly lost at sea. Lawyers, judges, politicians, plaintiffs and professors battle to steer the ship but one way or another the ship is changing course no matter who is at the helm.
Your point about fairness being in the eye of the beholder and the difficulties of using social science research to design outcomes are well taken. I do think, however, that some principles of a good legal system can be defended without reference to awards or particular social groups.
Local issues decided locally and national issues decided nationally, for example, is a pretty good rule of thumb regardless of one's politics. Thus, moving class actions to the federal courts seems justified to avoid the dictatorship of twelve problem. Similarly, I am no fan of the FDA but, contra William F. Buckley, I prefer to be governed by FDA physicians and statisticians than be subject to the ill-informed whims of 12 of the randomly chosen unelect. FDA approval ought to provide some form of safe-harbor for pharmaceutical manufacturers.
I see that I have moved away from judicial selection. Let me return briefly before turning over the forum. Although I have suggested a greater role for federal judges in tort I do have trepidations when it comes to criminal law. Too many crimes have been federalized and I worry when those who preach federalism and state control suddenly forget those principles when it comes to say medical marijuana.
* Some information on the calculations above. I have data on 41 thousand winning awards from 1803 counties. In each of the three cases that I examine I compute the mean from a relatively large sample of 3-5 thousand cases.
Trials by Research and by Jury
By David Rottman
Thanks for the analysis of county-level average awards that you provided. As before, your findings are striking and thought-provoking. I had anticipated that awards might be lower in affluent areas—hence the “subscribers” hypothesis. I have two quick reactions. First, it remains uncertain that juries in white, high income counties are rendering what can be viewed as “correct” award levels. Second, “rural out of the way counties” I assume, were the venue for relatively few tort trials, and thus potentially even more heavily influenced by a few high dollar awards than would be the more urban areas. [More generally, looking at averages tends to give you a rather different picture of our tort system than the use of the median award (where half of all awards are higher and a half is lower). Using the data compiled by the National Center for State Courts on behalf of the U.S. Department of Justice’s Bureau of Justice Statistics from 45 of the 75 most populous counties, the median tort award in state courts during 2001 was $28,000,with 8 percent of awards over$1 million]*
Let me next say a few words about the American jury, which you malign as “the tyranny of the twelve”. First, if tyranny it is, the U.S. Constitution imposes it. The Seventh Amendment states:
“[I]n suit at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Similar provisions exist in the various state constitutions. Shifting cases to the federal courts offers no immunity from the judgment of the American jury. Federal and state courts draw their juries from the same pools of potential jurors.
Second, jury pools have expanded over recent decades as the discriminatory practices that limited the participation by women, minorities, and the poor were removed. Thirty-five years ago, about 6 percent of all adults had ever served on a jury; today, close to one adult in three has experienced jury service. As a result, the jury participation of many minority groups has risen from near zero to rates roughly comparable to those for Whites. (At the same time, however, other reforms have gone far to eliminate the occupation-based exemptions that kept many professionals and business people out of the jury room.) It seems a sound principle that all citizens have an equal probability of being called to jury service.
Third, there is ample research attesting to the quality of jury decision-making. Judges and juries tend to agree on verdicts and awards. As a deliberating body, the jury compares favorably with other mechanisms, such as the hiring recommendations of employment interview panels or the diagnoses of medical panels (for a quick summary of such comparisons, see the table on page 71 in Verdict: Assessing the Civil Jury System, a 1993 report by the Brookings Institution). In the criminal justice arena, juries with predominately minority jurors have been attacked as the source of jury nullification (failure to convict as a protest against perceived unfairness in the legal system). When tested by research, these attacks on the jury have been found wanting: Jury decisions are explicable based on the strength of the evidence.
Despite our differing perspectives on judges and juries, we share a notable point of agreement. You memorably write of how “Lawyers, judges, politicians, plaintiffs, and professors battle to steer the ship [of torts] but one way or another the ship is changing course no matter who is at the helm.” The best evidence for this tendency to drift is the phenomenon of “the vanishing trial.” State civil trials by 32 percent since their 1976 levels, with most of the drop concentrated in the last five or so years (a less precipitous decline also occurred in federal civil trials over that period). The rise of privatized adjudication is one factor cited as a possible explanation, but such a decline would seem to reflect a significant shift in the incentives facing lawyers and litigants in going to trial (The November 2004 Journal of Empirical Legal Studies is devoted to the vanishing trial phenomenon.)
Tort reform, on which so much of our exchange thus far has focused, is a consideration in the debate on judicial selection. To me, it can never be more than a minor consideration. And I remain unconvinced that the available research evidence about the distribution of tort awards offers a sound basis for preferring one judicial selection method to another.
We have, though, found some common ground--the corrosive influence that campaign fundraising by judicial candidates can have on the perception and the reality of equal justice in states that elect their judges. I can report that there have been some positive developments in this regard. North Carolina in 2004 became the second state (Wisconsin was the first) to publicly fund (appellate) judicial races. Twelve of the16 candidates relied on such funding, as did four of the five winning candidates (the other winner applied for but did not qualify for the funding). Also, a decade ago the Texas Supreme Court demonstrated that limits can be placed on lawyers’ contributions and specifically on the total amount any law firm can contribute.
But, alas, these positive steps are being dwarfed by the threat of a free-for-all in which judges and their opponents can personally solicit campaign funding from lawyers and litigants, current or potential, and behind closed doors. Such freewheeling fundraising by judicial candidates already is acceptable in the eyes of the 11th Circuit in its decision in the Weaver case. Although none of the parties had even raised the issue, the Court found a right by judicial candidates in Alabama, Florida, and Georgia to solicit contributions face-to-face from litigants, lawyers, and others. Prohibitions against such solicitations were one of the various measures placed by states in their Constitutions and statute law to keep judicial elections different from elections for political office. Like the Constitutionality of non-partisan judicial elections, prohibitions on face-to-face fundraising are now before the 8th Circuit, another issue raised in the original White case but remanded back to the U.S. Circuit Court of Appeals for adjudication. The floodgates of money could open in a way that will ultimately benefit no one, least of all the American legal system.
I value this exchange of viewpoints. We have touched on some fundamental points of disagreement, but also identified areas of agreement. Another point of agreement is that your work (and that by other economists) should promote research and debate on the possible link between judicial selection systems and patterns of case outcomes. At this stage, we seem to have more of a platform for redistributing wealth from one group of litigants to another than one offering a principle grounded in fairness that can promote positive change in our courts.
*This is not the proper forum to extend our discussion to the differences in research findings that may be attributable to whether jury verdict reporters or court records are the source on data on state court verdicts and awards. There are advantages and disadvantages in each source, and these should be openly debated. Data collection efforts by the National Center for State Courts employ both sources in describing patterns of outcomes in civil trials.
Jury Problems and Law Problems
By Alex Tabarrok
I will make just one more point before signing off. I worry not so much about juries deciding cases wrongly as about juries deciding wrong cases. The problem, in other words, is not juries per-se but the combination of juries with the expansion of tort law into areas where choice, contract and legislation more properly belong.
Thanks David for a stimulating discussion!
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THIS MONTH'S DISCUSSION'S ENTRIES
ELECTIONS AND SELECTIONS
How Judicial Elections Bias the Courts, Alex Tabarrok, January 10, 2005, 12:20 PM
Judicial Reform is Not for the Short-Winded, David Rottman, January 11, 2005, 04:20 PM
Justice(s) for Sale, Alex Tabarrok, January 12, 2005, 11:49 AM
Babies and Bathwater, David Rottman, January 16, 2005, 06:22 PM
Principles of reform, Alex Tabarrok, January 18, 2005, 11:10 PM
Trials by Research and by Jury, David Rottman, January 21, 2005, 03:13 PM
Jury Problems and Law Problems, Alex Tabarrok, January 24, 2005, 11:22 AM
FEATURED DISCUSSION ARCHIVE:
Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004