The Pursuit of Justice and Elected vs. Appointed Judges

In my earlier post I outlined the way that economics is applied to analyze incentives in the legal system. The most fruitful area of research in this vein, and arguably the most important one, has focused on the behavior of judges. Unlike consumers and producers in market settings, the relevant incentives for judges’ behavior are usually not denominated in money terms. One exception is bribery. Another is to look at judges’ salaries and how their decisions might affect them. But these are relatively specific issues within a broader set of questions about how judges respond to incentives generally. Several chapters in The Pursuit of Justice extend this area of work.

Since judges usually don’t incur direct money costs by ruling one way or another, we have to measure their incentives in another way. This is where public choice theory offers an advantage. Broadly speaking, public choice seeks to determine whether observed outcomes are systematically different when under different institutions. For judges, then, a good starting point is to compare their decisions under different selection methods, such as elected versus appointed judges. Simply put, elected judges might have the incentive to rule in ways that will get them re-elected. Appointed judges, on the other hand, might have the incentive to represent the interests of the political offices that appoint them. Within the elected-versus-appointed dichotomy, we can insert even further institutional details. Elected judges, for example, might be elected in partisan elections where they run on party-line ballots alongside candidates for legislative and executive offices. Or, elected judges might be elected in non-partisan races. The basic premise is that these different institutional environments confront judges with different sorts of incentives, and we ought to be able to observe the effects in the way the legal system functions.

The American states provide a natural laboratory for testing these ideas. In 29 states judges are appointed by the governor and/or legislature. In the other 21 states judges are elected. Thirteen states have non-partisan elections, and the remaining 8 have partisan elections. In Chapter 3, economists Russell S. Sobel, Joshua C. Hall, and Matt E. Ryan present survey-based data on the perceived quality of each state’s overall legal system. Controlling for education of the populace, judges’ salaries, lawyers per capita, and voter ideology, the authors then estimate the influence of selection type on perceived quality of the states’ legal systems. They find that states with elected judges fare systematically worse on the quality survey, and that almost all of this effect is driven by partisan-election states. Similarly in Chapter 8, economist Adriana Cordis empirically models the effect of judicial selection methods on government corruption. Measuring corruption with data from the Bureau of Justice Statistics on federal arrests of state and local government officials, and controlling for a number of factors, Cordis finds that corruption is lower in states with appointed as opposed to elected judges.

The American counties provide even greater institutional variation, which economists Aleksandar Tomic and Jahn Hakes exploit to observe variation in the way judges rule in criminal cases. Using a rich data set of over 70,000 cases in 54 large-population counties, Tomic and Hakes uncover an entirely novel pattern. Elected judges have higher incarceration rates, but appointed judges issue longer sentences. Absent the view that incentives matter to judicial behavior, these results might be puzzling. But elected judges represent local county voters, who capture the gains of being “tough on crime” locally while sharing the costs of incarceration in a statewide fiscal commons. By contrast, appointed judges answer to statewide politicians, who are sensitive to the fiscal impact of prisons and appreciate the fact that longer sentences spread the average cost per conviction onto future administrations.

These three studies are far from mere academic exercises, as demonstrated by the recent controversy over campaign contributors appearing before elected judges who fail to recuse themselves, which escalated to the Supreme Court in Caperton v. Massey (2009).

Edward J. López is a Research Fellow at the Independent Institute.
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