The University of Chicago Law School Faculty Blog

Are Appointed Judges Better Than Elected Judges?

Everyone assumes that the answer is yes, but the evidence suggests (maybe) otherwise.  See this paper, and the abstract below.

Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary

STEPHEN J. CHOI New York University - School of Law G. MITU GULATI Duke University - School of Law ERIC A. POSNER University of Chicago Law School; University of Chicago Press August 2007

Abstract:      Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

A Feed of One's Own: The Faculty Podcast Begins a New Life

Since we began podcasting all the way back on Halloween of 2005, the podcast feed has been dependent on the blog feed that you're reading right now. This was convenient for those of us updating the feed, but less so for those who wanted to find old podcasts on iTunes or other podcast aggregators (TypePad's feeds are limited to 20 items, which meant that the feed would only display podcasts that had been added within that small window). Now with 42 episodes and counting, we decided it was time that the podcast grow up and move out, so we've created a separate feed just for the podcast. If you'd like to subscribe, just point your podcatcher to this address: http://feeds.feedburner.com/UChicagoLawFacultyPodcast

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The Mortgage Crisis and Affirmative Action

Quick: What do current and past mortgage crises have in common with affirmative action?

There is a good deal of irony in the current financial crisis, if it is that. Home mortgage foreclosures have increased and some major lenders are in financial difficulty. The reverberations that have hit the world's stock markets are headline material. Predictably, some politicians favor bailouts in the form of subsidies to homeowners in difficulty. And just as predictably, the reaction of (these and other) politicians is that the lenders are at fault, and that regulation is needed because these lenders were careless in lending to borrowers who could not really make payments. It is even possible that solvent lenders will be penalized for making too many loans of certain kinds. Memories are short. In most atmospheres, politicians are quick to complain that lenders are insufficiently generous when it comes to qualifying borrowers. When real estate prices are rising, it is likely that the complaint will be that more working people should have owned property. When real estate prices fall, the complaint will be that lenders profited by exploiting over-optimistic borrowers.