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Judicial elections and the New York Times

For decades, plaintiffs' attorneys and labor unions have worked together to elect judges favorable to their interests, and for decades, these elected judges have systematically moved American law in a direction unrecognizable and ridiculed in the rest of the world to create a tort system that takes up a share of the economy more than twice as large as any other Western nation. In response, the business community started supporting judges who had track records of actually following the law; the electorate tended to support these judicial candidates over the plaintiffs' bar's candidates. Because these judges aren't in the pockets of the plaintiffs' bar, they don't reflexively vote for the meritless positions taken by the litigation lobby—and now the New York Times and the press suddenly finds it interesting that judges face elections where they fund-raise, and that campaign funds are more likely to be donated to candidates who are sympathetic to the funder's view of the law. (Adam Liptak and Janet Roberts, "Campaign Cash Mirrors a High Court�s Rulings", New York Times, Oct. 1).

What's amazing is that the Times focuses on a recent Ohio Supreme Court decision, Maitland v. Ford, 103 Ohio St.3d 463, 2004-Ohio-5717. (Disclaimer: I billed a handful of hours to Ford Motor on the case. The views here are my own, and not that of Ford, its co-petitioners, or its attorneys.)

Ohio, like most states, has a lemon law entitling consumers to sue to return cars to dealers for a refund. (A "lemon" is defined broadly enough under Ohio law that my Toyota Prius, which I am completely satisfied with, and has spent precisely one week in the shop waiting for parts, would qualify.)

The statute required consumers to attempt to use an "informal dispute resolution" mechanism before bringing suit. Ford, like other auto dealers, would offer to settle cases by providing a new car at the same price as the old car, minus an offset for mileage; someone who had gotten thousands of miles of use out of the car would face a larger offset than someone who had only fifty miles. Not only did the statute not prohibit such settlements, but the Ohio Attorney General explicitly approved it. Never mind, plaintiffs' attorneys argued, this is consumer fraud, entitling everyone who settled to multiples of damages and attorneys' fees. A trial court threw this out, and an appellate court bizarrely reinstated the claim without any statutory justification, arguing that defendants could only provide the full purchase price in settlement, or must litigate the case. (153 Ohio App.3d 161, 2003-Ohio-3009, 792 N.E.2d 207.) The Ohio Supreme Court took the reasonable position—by a 4-3 vote. All four majority judges took donations from manufacturers; all three dissenters took donations from the plaintiffs' bar. Guess which judges and contributions the New York Times singles out? The real scandals here are that the decision wasn't 7-0, and that the appellate court made a ludicrous decision that needed to be reversed by the Ohio Supreme Court, adding substantial litigation expenses to a meritless claim.

But at no point does the Times discuss the merits of the case. In fact, it oversells the argument of the dissent, by stating "the majority�s ruling gave the plaintiffs an impossible choice: to pursue a lawsuit that could cost more than the car itself or to accept the reduced sum." What the Times doesn't tell you is that the lemon law also permits one-sided recovery of attorneys' fees by winning plaintiffs, so the New York Times's claim is false: there's no Hobson's choice. (See � 1345.75(A).) A plaintiff dissatisfied with a settlement offer who has a meritorious claim has no financial disincentive to litigate.

The Times article entirely ignores the amount of contributions from trial-lawyer organizations to the dissenters (focusing solely on the lawyers who brought the quixotic case), and takes the word of one person without comment that the trial bar is capable of raising only $300,000 for a judicial candidate (despite nationwide evidence to the contrary). Indeed, "contributions from lawyers were excluded from the study's main findings," immediately biasing the results, even though lawyers as a class are among the chief beneficiaries of (or chief losers from) court rulings. Adam Liptak usually does much better than this when covering the judicial system, and I'm disappointed that this article ended up so one-sided.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.