Academic journal article Faulkner Law Review

The Economic Effects of Judicial Selection

Academic journal article Faulkner Law Review

The Economic Effects of Judicial Selection

Article excerpt

I. INTRODUCTION AND META-ANALYSIS

I would like to thank you all for the opportunity to talk today, and I would like to add a special thanks to the Editorial Board of the Faulkner Law Review for extending the invitation. I am here today to speak about the judiciary and the method of selecting members of the judiciary. Specifically, I want to offer an overview of the economic theory and empirical evidence that support my contention: The appointment or merit-based selection of judges is preferable to judicial elections because of the importance of an independent judiciary.

Now, I am an economist, and I may very well be the only economist in the room. That said, I might have a somewhat unique way of viewing the judiciary, the role it plays, and why it matters. I hope to address each of these issues and detail all of this through the economic lens and the economic way of thinking.

Many of you may wonder why an economist would take interest in the judiciary and how the judiciary is actually important to economics. Given that, I hope to begin this talk with an initial meta-analysis of this issue, (1) recognizing that an independent judiciary plays a fundamental role through the incentives it creates. From this, it is necessary to analyze and to understand the incentives and constraints that the judicial selection process creates and how these incentives and constraints may help or hinder judicial independence. Then, I will provide some theoretical arguments as to why appointment or merit-based selection is expected to perform better relative to popular elections. Next, I will discuss a survey of the existing empirical evidence within economic and political science literature supporting the conclusion that merit-based selection and appointments do, in fact, perform relatively better compared to popular election. I will close with some additional research opportunities. Overall, while my contention is that appointments and merit-based selections are preferable to popular election, this argument is based solely in consequential terms. Further, it is important to temper this argument by emphasizing that it is a relative argument. In other words, while no method of selection is without benefit, no method of selection is without cost, either. Here, a simple weighing of those relative costs and benefits drives the conclusion I reach.

Ultimately, why the judiciary is, and especially how individuals are, selected to the bench relates back to the importance of institutions and comparative institutional analysis. The literature has quite convincingly shown that it is the institutional environment and specific existing institutions that will promote or hinder economic growth and development. (2) While many other considerations can influence growth and development, these are of secondary importance relative to institutions. (3) Specifically, the evidence overwhelmingly indicates that jurisdictions where institutional arrangements are conducive to the protection of property rights and to the rule of law tend to grow more rapidly and enjoy greater prosperity relative to jurisdictions without such arrangements. (4) This is largely driven by the incentives created through adherence to those two particular constraints. (5)

So, what do I mean when I refer to "institutions" and why do they matter? Nobel Laureate Douglass North spent most of his career dealing with this issue and, thus, probably provides the best economic definition. North suggested institutions could be the "formal rules, written laws, formal social conventions, informal norms of behavior, and shared beliefs about the world, as well as the means of enforcement." (6) Simply put, they are the "rules of the game" within which economic agents must operate and attempt to organize their private and public lives. (7)

Why judicial selection matters has to do with some of the basic tenets of economic analysis, the most important of which (and one that I will return to later in more detail) are the incentives created and the role they play. …

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