Money, Politics, and Impartial Justice

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States\u27 judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, especially in partisan elections, tend to decide cases in accord with standard Republican policy: they are more likely to vote for businesses over individuals, for employers in labor disputes, for doctors and hospitals in medical malpractice cases, for businesses in products liability cases and tort cases generally, and against criminals in criminal appeals. Judicial behavior is correspondingly liberal for judges facing reelection by Democrats. Moreover, I find evidence that judges change their rulings when the political preferences of the voters change. In addition, my analysis finds a strong relationship between campaign contributions and judges\u27 rulings. Contributions from pro-business groups, pro-labor groups, doctor groups, insurance companies, and lawyer groups increase the probability that judges will vote for the litigants favored by those interest groups. The results suggest that recent trends in judicial elections-elections becoming more contested, competitive, and expensive-may have upset the delicate balance between judicial independence and accountability. I discuss various policy solutions for reforming states\u27 systems

Are Appointed Judges Strategic Too?

The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually all state supreme court decisions from 1995-1998, this Article provides empirical support for the reformers\u27 arguments; in many cases, judges seeking reappointment vote even more strategically than judges seeking reelection. My results suggest that, compared to other retention methods, judges facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other government branches. Moreover, judges increasingly favor government litigants as their reappointments approach, which is consistent with the judges voting strategically to avoid reappointment denials from the other branches of government. In contrast, when these judges are in their last term before mandatory retirement, the effects disappear; without retention concerns, these judges are no more likely to vote for government litigants than other judges. My empirical evidence suggests that elective systems are not the only systems that produce bias; appointive systems also threaten judicial independence

Tort Reform and Accidental Deaths

Theory suggests that tort reform could have either of two impacts on accidents. First, reforms could increase accidents as tortfeasors internalize less of the costs of externalities, and thus, have less incentive to reduce the risk of accidents. Second, tort reforms could decrease accidents as lower expected liability costs result in lower prices, enabling consumers to buy more risk-reducing products such as medicines, safety equipment, and medical services. We test which effect dominates by examining the effect of tort reforms on non-motor vehicle accidental death rates, using panel data techniques. We find that caps on noneconomic damages, caps on punitive damages, a higher evidence standard for punitive damages, product liability reform, and prejudgment interest reform lead to fewer accidental deaths, while reforms to the collateral source rule lead to increased deaths. Overall, the tort reforms in the states between 1981-2000 have led to an estimated 14,222 fewer accidental deaths.

Deterrence versus Brutalization: Capital Punishment\u27s Differing Impacts among States

Policymakers\u27 false beliefs about capital punishment\u27s universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment\u27s purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment\u27s recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences in states\u27 applications of capital punishment and tests the effect on murder of executions in individual states. In Part V, I examine possible causes of the different effects of executions on murder across states. Part VI then offers results from two other models and data sets. Finally, Part VII presents conclusions

Judging Law in Election Cases

How much does law matter in election cases where the partisan stakes are high? At first glance, election cases may seem the worst context for studying the influence of law on judicial decision making. Election cases, which decide the applicable rules for a given election, often determine election outcomes and therefore feature the highest political stakes in the balance. There is great temptation for judges to decide these cases in a partisan fashion to help their side. And we have found empirically in earlier work that judges do often appear influenced by partisanship in deciding these cases for their own parties in a way that suggests politics matter more than law.1 But in this Article, we argue that election cases actually offer a unique opportunity to study the role of law in judicial decision making precisely because we can assume partisanship influences judges in these cases. If judges prefer to decide election cases consistent with their partisan interests, then they may decide these cases contrary to partisan interests mainly when the out-party litigant\u27s case has strengths sufficient to overcome this usual, countervailing influence of partisan loyalty. For this reason, we use lower court judges\u27 decisions contrary to their partisan interests (e.g., for a litigant from the opposite party, or against one from their own) as a proxy for underlying case strength. Lower court judges\u27 decisions against their partisan interests buck the normal pattern of partisan loyalty and therefore offer an inference of greater case strength compared to other decisions that are consistent with partisan expectations. Put another way, case strength is assumed to be greater for winning litigants when lower court judges went against their own partisan interests to decide for the winning litigants, than in cases where lower court judges predictably decided in favor of their own party\u27s interests. With this inference of case strength in hand, we then can examine whether case strength is predictive for state supreme court decision making in these cases on appeal

Judging Judicial Elections

Melinda Gann Hall’s new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us—a powerful defense of today’s partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the “corrosive effect of money on judicial election campaigns” and “attack advertising,” the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. Justice O’Connor, who has championed judicial-election reform since her retirement from the Supreme Court, warns that “there are many who think of judges as politicians in robes” and agrees “[i]n many states, that’s what they are.” Melinda Gann Hall, a political scientist and authority on judicial behavior, sets out in her book to challenge some of these claims

Judging Judicial Elections

Melinda Gann Hall’s new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us—a powerful defense of today’s partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the “corrosive effect of money on judicial election campaigns” and “attack advertising,” the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. Justice O’Connor, who has championed judicial-election reform since her retirement from the Supreme Court, warns that “there are many who think of judges as politicians in robes” and agrees “[i]n many states, that’s what they are.” Melinda Gann Hall, a political scientist and authority on judicial behavior, sets out in her book to challenge some of these claims