Legal Commentary

In his Sidebar column today in the NYT, Adam Liptak spotlights a forthcoming study of judicial voting in Louisiana by Tulane prawf, Vernon Palmer. Palmer thought it improper that the Justices on  Louisiana's Supreme Court failed to recuse themselves in cases where they received campaign donations from one of the litigants. After the Justices refused to recuse themselves, Palmer conducted a study showing that the incidence and amount of a campaign contribution co-related well with which way the Justices voted in the cases.

On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time...Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

In response to other studies of possible erosion of judicial virtues and suggestions by Justices Breyer and Kennedy that campaigning is in tension with judicial responsibilities, Adam writes that the cure for this problem is relatively straightforward:

But you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person?s case.

This makes some sense, but to me it raises some questions of incentives and strategy. If I represent a client with a very valuable "pro-business" litigation position, why won't I suggest early on that she give money to the campaign of the "economic populist" running for re-election? That way she can use the taint rule to effectively disqualify the judge who will vote against her if her litigation position is worth more to her. In other words, I worry the rule which Adam and Professor Palmer endorse works too broadly, and will give a cheap way to DQ potentially hostile judges. A rule of necessity issue might also come up if someone gives campaign donations to all the justices or a majority of them. Am I right in thinking this? If so, are there other plausible solutions?

Btw, check out Adam's other cool article today on Bail Bondsmen.

Update: Adam informs me via email that we can reduce such "strategery" by giving the adversary the option of requiring recusal in such circumstances. That's a shrewd point. Still, I wonder if that removes the problem when there are information asymmetries; I also worry it will encourage some wasteful gamesmanship in any event. But what's the alternative: abolish judicial elections?