Law, and especially commercial law, is no longer “local”. At WAC? we’ve made no secret of the fact that we believe that the widespread system in the American states of popular election of judges is a threat to good clients, good lawyers and good lawyering. All American and non-American litigants deserve American judges in all states based on merit-selection in accordance with the imperfect but far superior and more successful U.S. federal judge selection process. One reason: like federal judges, judges should be charged with the obligation to bend over backwards for all parties which appear before them, including out out-of-state companies. Get rid of the state-court judicial election systems. America will look and be fairer and saner. We’ll continue to write about this when time permits. In the meantime, see this op-ed piece in Forbes by Alexander Tabarrok this past summer we missed called “Courts Gone Wild“. Excerpts:
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?
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Such awards help judges get re-elected. In a remarkably frank admission, [one 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.”
An even bigger inducement for elected judges to shade their rulings against out-of-state defendants is money. Elected judges need money to run their campaigns. Lawyers are by far their biggest donors. While it would certainly seem unsavory to most Americans, it’s not at all uncommon for lawyers to give large donations to judges who later hear their cases.