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A Judicial Market for Lemons

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opednews.com Headlined to H2 7/30/11

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In an effort to increase the transparency and impartiality of the judicial process, many states have faced pressures to reform their Codes of Judicial Conduct in accordance with the American Bar Association's guidelines. A large portion of the reforms deal with financial reporting requirements and restrictions on judges' corporate contributions and political affiliations. It is perhaps fair to say that a judge with large investments in a particular organization will not be able to perform up to par if that organization is involved in the judge's court.

Yet refusing to adjust judges' salaries for at least the cost-of-living, as exhibited in New York City in The New York Times article earlier in July, based on the argument that "court corruption and politicized judicial campaign" should not be rewarded, fails to consider the probable connection between stagnant salaries and improper behavior. When a judge must run for election, and is severely budgeted by a salary inferior to other professionals of the same education level, the judge must look into other sources of revenue to simply maintain his/her position. And that is where corporations' checks are not merely preferred, but indispensible to ensure a successful campaign.

The typical Judge Judy stereotype places judges upon a pedestal, but not as intelligent individuals with superior experience and education, but rather as unemotional, almost robotic enforcers of justice. It is as if the judges do not have the same family obligations and financial needs as other individuals, as if their pricey educational investments in a bachelor's, J.D., ethics training, and so on can be disregarded in salary standards.

No wonder that almost 10% of New York judges have resigned when they are earning less than $150 grand, while they could be earning up to ten times that amount in private practice. While Dr. Posner argues that there is no clear correlation between higher-paid judges and job performance, I would argue that there is a connection between judge salaries and the pool of applicants. Could the stagnant salaries deter highly qualified professionals from seeking judicial posts? Particularly in New York City, where living costs top U.S. charts and firms such as Dechert, LLP are willing to pay over a million dollars, perhaps the "market" for judges, is turning into a market for lemons. Through adverse selection, the relative decline of judges' salaries is attracting less qualified applicants.

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And perhaps it is these less-qualified applicants that are being swayed by political contributions in their judicial duties, that account for the rise in legal corruption and politicization. When there is a 107% gap between increases in wages of judges and law partners in the past six years, it seems that society is sending a mixed message about the judicial process--in order to expect high quality work from our judges, we must first ensure fair compensation for their aptitude and skills.  

It is unjust that members of society with the most influence and responsibility are the ones less incentivized to properly perform their duties compared to other employees within large corporations. Doesn't this system merely encourage already well-off individuals to run for judicial office, rather than widen the applicant pool to highly capable individuals nation-wide, who are instead quickly swooned into more-profitable private practice?

More so than rewriting the Code of Conduct to mandate the recording of each gift or form of compensation from outside organizations, we must see that a judge's post attracts the most skilled individuals, no matter their economic standing.   We must rid the judicial applicant pool of adverse selection, where the highest qualified applicants are crowded out of the relatively low-paid judicial positions. Our judicial system hinges on the competency of judges--a competency that is able to withstand political scandals and financial corruption. And we must provide the appropriate compensation to ensure such competency.   

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