Theory on framework issues

Tuesday, March 24, 2009

4.1. Gratuitously paying judges biases them: Caperton, Sturgeon, Fine

Three recent cases,Caperton v. A.T. Massey Coal Co. (U.S. Supreme Court) , Sturgeon v. County of Los Angeles (California Court of Appeal), and Judge Yaffe's ideologically related finding Richard Fine in contempt (Los Angeles County Superior Court) (see—highlight biases caused by financial contribution to judges. Caperton brought indignation about a judge's refusal to recuse himself despite receiving a $3 million contribution from a litigant, but the response to Sturgeon/Fine has mostly ranged from ambivalent to indifferent, although the Sturgeon/Fine issues also involve huge contributions to judges. Compared to the $3 million in Caperton, Sturgeon involves much less or much more, depending on how you count $40,000 per year per judge for an expenditure of $21 million each year.
How to explain the different popular reactions to Caperton and Sturgeon/Fine? Sturgeon/Fine isn't lacking in drama, as Fine today (as far as I know) remains locked in jail for contempt in defying a jurisdictionless county-money taker. One difference in Sturgeon/Fine compared to Caperton is the limited freedom contributor County enjoys to adjust incentives to outcome. County is limited in all the ways State is—no decreases in pay during a judge's term and measures must apply to the entire judiciary—suggesting the bias is neither a new kind nor a potent variant. But judicial disinterest in County's contributions only follows from calculating the judges' biasing interest based on County's strategic power over individual judges, a calculation assuming away the universal human tendency to pursue collective interests defined by salient shared outcomes. Amount of influence depends on the influencer's freedom to vary the incentive but isn't limited to individual calibration. If State pays judges a market-equilibrium salary, State has little freedom to vary judges' pay because change means State loses too. If County pays judges above equilibrium price, then County can—beneficially—economize.
On this model, whether County biases judges by paying them depends on whether it pays them more than they're worth. Such matters of fact must be decided to resolve issues of bias; this decisional necessity argues for treating biased civil-judicial performance as actionable tort rather than due-process violation.

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