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11/01/2011 - American law is, by international standards, a series of innovations and exceptions. This series of articles examines commonplace aspects of the American justice system that are unique in the world.

Adam Liptak originally researched and published these articles in 2007 and 2008. With permission from The Wall Street Journal, Mr. Liptak's articles have been edited for space, and we will try to update his reports with recent statistics, information or rulings that may have changed the law since the articles were first published.

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AMERICAN EXCEPTION

RENDERING JUSTICE, WITH ONE EYE ON RE-ELECTION

By Adam Liptak, The Wall Street Journal, May 25, 2008

Every November, voters do something that is routine in the United States but virtually unknown in the rest of the world: They elect judges. Frequently, the elections go practically unnoticed, but sometimes judicial elections are hard-fought, with caustic advertisements on both sides.

Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the U.S. equivalent to a district court in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter a 27-month judicial training program. In some years, as few as five percent of the applicants survive.

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. Supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

According to Mitchel Lasser, a law professor and author at Cornell, "The rest of the world is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American."

But some American law professors and political scientists say their counterparts abroad should not be so quick to dismiss judicial elections.

Prof. David M. O'Brien, a specialist in judicial politics at the University of Virginia says other systems are also problematic. "There's greater transparency in the American system." The selection of appointed judges, he said, can be influenced by political considerations and cronyism that are hidden from public view.

Some political scientists say voters do not have near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements. "You don't get popular control out of this," said Steven E. Schier, a professor of political science at Carleton College in Minnesota. "When you vote with no information, you get the illusion of control."

Still, in those states where judges are elected, they may alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that "all judges, even the most punitive, increase their sentences as re-election nears," resulting in some 2,700 years of additional prison time over a 10-year period.

Judge Baissus, the French judge, said his nation had considered electing its judiciary after the French revolution. "It was thought not to be a good idea. People seeking re-election would not be independent. They are indeed close to the electorate, but sometimes uncomfortably so."

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Nothing in this article should be construed as legal advice. You must consult with an attorney for the application of the law to your specific circumstances.

R. Michael Shickich is the founder of the Injury Law Firm located in Casper. The focus of his practice is personal injury and wrongful death cases.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

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