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Friday, October 06, 2006



If the decision is legally correct, how can one definitively say that it was reached because the parties gave money? Again, why isn't the scandal that the three dissenters took money from the plaintiffs' bar and ignored the law rather than that the four majority votes took money from both sides and followed the law?

Why is this blog so focused on the appearance of impropriety, when ATRA has been for years highlighting actual impropriety in state courts where judges receive money from the plaintiffs' bar? My recollection is that Public Citizen publicly attacked those reports.

I'm all for getting money out of judicial selection. But the fact remains that the vast majority of judges elected by money have been elected by plaintiffs' bar money, and Alex Tabarrok and Eric Helland have empirically demonstrated that those judges reward their constituency. And it seems awfully suspicious to me that this problem has been going on for years, that reformers have been complaining about it for years, and that it's only highlighted by Public Citizen when elected judges start following the law instead of rewarding Public Citizen's benefactors.


I think this is correct. The problem here can't be brushed aside by reference to the merits of the decision. That's so not just because (as Jeff points out) what's at stake is the appearance of impropriety--which erodes public confidence in the legal system--but also because there's a fundamental question of procedural fairness here: If a decision is reached because one side gave the justices more money, that's wrong regardless of whether the outcome itself is or is not correct as a matter of law.

This is a good opportunity to consider the legal rules that may have contributed to this sorry state of affairs. The U.S. Supreme Court was recently presented with a chance to address this problem in Avery v. State Farm, a major consumer class action from Illinois involving an auto insurer’s use of aftermarket parts for repairs. The question presented in the cert petition, filed by Alan Morrison and Elizabeth Cabraser, said it all:

May a judge who receives $1 million in direct and indirect campaign contributions from a party and its supporters, while that party’s case is pending, cast the deciding vote in that party’s favor, consistent with the Fourteenth Amendment to the United States Constitution?

For reasons we can't know, the Court denied cert. That’s particularly disappointing because in some ways, the problem is one of the Court’s own making. On the one hand, although there's a due process principle of financial disinterestedness--embodied in a long line of Supreme Court cases from Tumey v. Ohio (1927) to Aetna v. Lavoie (1986)--the Court has never applied those cases to campaign contributions. On the other hand, the Court's First Amendment jurisprudence has prevented the states from adequately restricting campaign cash in judicial races. If the court neither modifies its First Amendment jurisprudence or clarifies the due process limits on judicial financial interest, the problem outlined by the New York Times can only be expected to continue.

Here's the cert petition in the Avery case:

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