Law Commons^™

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

The Rule Of Law And Enforcement Of Chinese Tort Law, Vincent R. Johnson

Faculty Articles

The majority of the work necessary to advance the Rule of Law in China is yet to be done. This is particularly the case as it relates to deterring accidents and compensating injuries. The Rule of Law is concerned with much more than the substantive terms of legal provisions. As such, China must develop the institutional practices that will bring to fruition the promise of the new Tort Law. In part, this will entail the proper selection, retention, and protection of judges. It will also depend on whether persons have access to the justice system, either through competent counsel or …

Are Appointed Judges Strategic Too?, Joanna Shepherd

Faculty Articles

The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually …

Money, Politics, And Impartial Justice, Joanna Shepherd

Faculty Articles

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States’ judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, …

The Ethical Foundations Of American Judicial Independence, Vincent R. Johnson

Faculty Articles

Most lawyers and many citizens could recall the federal constitutional basis for judicial independence. Article III of the United States Constitution mandates that positions be filled through appointment by the President and confirmation by the Senate. That formidable selection process almost invariably ensures that federal judges are intelligent, well educated, and professionally experienced. Those qualities are conducive to judicial independence.

Additionally, federal judges enjoy the following constitutional guarantees: life tenure during good behavior, non-reducible compensation, and removal only through impeachment. These protections free federal judges from the need to behave in politically advantageous ways in order to keep their positions. …