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I wrote yesterday about how the Missouri Chamber's special interest politics will grow government, raise taxes, and threaten our Liberty. Since then, some friends have pointed out some additional material proving that The Chamber's tort reform policies just don't work. Not just that, The Chamber's policies make the civil justice system less effective and more expensive for everyone.

The English Rule

Let's take another look at the English Rule. While the American Rule has been followed in this country since before the Revolution, the English Rule was utilized by the King to suppress freedoms and restrict access to the courts. Under the English Rule, litigants – whether plaintiff or defendant – are penalized for simply standing up for their rights or in defense of their principles.

Herbert M. Kritzer examined this issue in "Loser Pays" Doesn't for Legal Affairs magazine. There, he noted that advocates of the English Rule claim the rule will discourage "frivolous" lawsuits and make the civil justice fairer and more efficient. But it doesn't.

[The English Rule] can work in ways that its supporters do not intend. Rather than discourage the filing of lawsuits, the system allows plaintiffs… to press potentially strong cases involving trivial amounts without worrying about the expense. As a result, the policy has helped increase the cost of litigation in Britain and has added another layer – fee disputes – to the process. It also has discouraged settlements. In the United States, where each side typically pays its own costs, decisions about whether to proceed or settle are often made in light of anticipated expenses. In a system where the loser pays, a party with a strong case has less incentive to compromise because costs are shifted tot he other side. A defendant can no longer cut losses by convincing the plaintiff to weigh the costs of proceeding and accept a discounted settlement.

I don't want to reproduce Kritzer's complete article – you should read it here. Kritzer concludes life is not as simple as English Rule advocates would have us believe. The English Rule both restricts access to the courts and increases costs for litigants – both plaintiffs and defendants – who make it there.

Judicial Elections vs. Merit Selection

I was also sent a copy of Annesley H. DeGaris's article on judicial elections vs. merit selection of judges entitled Crocodiles in the Bathtub, Gorillas at the Dinner Table: How Money and Politics are Destroying State Court Appellate Justice Across America, reference to which made a brief appearance in my post yesterday. (Unfortunately, I do not have a link to this article.)

DeGaris noted that in his home state, Alabama, political donors spent more than $40 million on Alabama Supreme Court elections from 2000 to 2009. Some of that money came from trial lawyers, but more of it came from The Chamber and Chamber-related corporations and business groups. Were these judges beholden to their corporate donors? DeGaris would not say one way or the other, but he did provide some troubling statistics. In 2004, the Alabama Court sided with the chamber 10 out of 14 times (71.4%). In 2005, the Alabama Court sided with Chamber Donors 14 out of 17 times (82.4%). In 2006, the Alabama Court sided with The Chamber 7 out of 11 times (64%). In 2007, the Alabama Court found for The Chamber 9 out of 14 times (64%)

These elections have been dominated by the escalating "tort war" between the plaintiffs' bar and corporate America that has resulted in levels of judicial campaign spending that – as Justice O'Connor suggested in her speech at Missouri – have been rightly labeled "obscene."

– DeGaris, How Money and Politics are Destroying State Court Appellate Justice Across America

Disturbingly, but not exactly surprisingly, the research cited by DeGaris noted a correlation between the amount of money a justice received from The Chamber and that particular justice's vote to uphold or reverse jury verdicts:

"[T]here appears to be a high… correlation between the individual justice's votes and the percentage of 'business interest' money he or she received."

While DeGaris stopped short – as will I — of concluding that correlation necessarily equates causation with respect to the integrity of these rulings, this study confirmed that – whether intentional or not – the increased polarization that comes with judicial elections – including the "obscene" amounts of money in judicial elections – really does have the effect of skewing justice for litigants.

More than 70% of the public believes that judges in judicial election states are influenced by political donations. More than one-quarter of judges agree. Former California Supreme Court Justice Otto Kaus once said that ignoring electoral pressure would be "like ignoring a crocodile in your bathtub." Justice Kaus also candidly admitted that he did not "know to what extent [he] was subliminally motivated by the thing you could not forget – that it might do you some good politically to vote one way or the other…. When you're eating dinner with a gorilla, it's hard to make small talk, even when he's using the right knife and fork."

Studies also show that people who live in states that hold judicial elections are more distrusting of their judges. People in such states believe their judges are less likely to act fairly and impartially and believe their judges are just politicians in black robes.

As I said yesterday, when justice can be influenced (or worse, bought), Liberty is extinguished. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democrat vs. Republican issues. Cases should be decided on the facts and on the law, not by partisan politics funded by special interest groups.

[More on your 7th Amendment Rights]

[More on the Missouri Non-Partisan Court Plan and Merit Selection of Judges]

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(c) Copyright 2012 Brett A. Emison

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