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Economic Crisis And The Rise Of Judicial Elections And Judicial Review, Jed Handelsman Shugerman
Economic Crisis And The Rise Of Judicial Elections And Judicial Review, Jed Handelsman Shugerman
Faculty Scholarship
Almost ninety percent of state judges today face some kind of popular election. This uniquely American institution emerged in a sudden burst from 1846 to 1853, as twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. When judicial elections swept the country in the late 1840s and 1850s, however, the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become a tool of party patronage and cronyism.
Legislative overspending on internal improvements and …
The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman
The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman
Faculty Scholarship
The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.
In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …