This Forbes.com article I found over the summer (hurray for waiting for the Court topic!) about tort abuse mentions research conducted by CMC Economics Professor Eric Helland. He and his colleague come to the disturbing conclusion that elected judges do play partisan politics, despite the pledges they take to uphold the Constitution.
Helland and his colleague continue. They mention a rather candid retired judge admitting to basically playing partisan politics. Here's more of the article.Tort awards are supposed to depend on how much someone is injured and whether another person is at fault. Such awards are supposed to have nothing at all to do with politics. So why are tort awards much higher in states where judges are elected?
In many states, including Alabama, Texas and West Virginia, judges run for election on partisan ballots, just like other politicians. But an elected judge faces different incentives than an appointed judge. To an elected judge, a plaintiff is a constituent. And what better form of constituent service than to take money from an out-of-state corporate defendant and give it to an in-state plaintiff?
In research published in the Journal of Law and Economics, Eric Helland, associate professor of economics at Claremont McKenna College, and I analyzed thousands of tort awards throughout the U.S. We found that awards against out-of-state defendants were 42% higher in states that use partisan elections to select their judges than in states that appoint judges; a $363,000 per-case increase on average.Though the article doesn't mention this fact, when judges award high penalties, this price is carried by the consumers. Understandably, torts hurt confidence in markets. I'm told that comparatively few companies fight these tort abuses, presumably due to fear that by tying up the company in lawsuits, they will get negative press and so they settle.Such awards help judges get re-elected. In a remarkably frank admission, Richard Neely, a West Virginia Supreme Court judge (now retired), explained the incentives that govern elected judges: "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 else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."
What do you guys think? Should judges be elected? Does anyone know about other studies affecting the election of judges? Are elected judges more likely to give lengthy prison terms for child molesters, rapists, etc.?
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A study was put out very recently where the terms of elected and appointed justices were compared empirically. Here is the abstract from "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary"
Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).
Here is the URL for the entire report:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008989#PaperDownload
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