Abstract

The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner. This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of experienced judges to leave the bench and has discouraged many of our most talented and experienced lawyers from accepting judicial nomination. Furthermore, as judicial compensation has declined, judicial appointees have increasingly come to the bench from the public rather than the private sector. This trend likely does not bode well for a balanced judiciary. We believe that judicial compensation should be increased substantially at both the federal and state levels.

Second, the central role the jury has come to play in American tort law undermines the consistency and predictability that are the hallmarks of the rule of law. When juries, rather than judges, determine basic issues of liability as opposed to resolving issues of fact, similarly situated litigants may receive widely varying results from different juries. In addition, empirical studies indicate that juries treat corporate defendants differently from similarly situated individual defendants, holding corporations to a higher standard of care and assessing significantly higher damages against corporations when they find liability. The direct and indirect costs of such inconsistent and discriminatory treatment harm not only corporations, but also employees, shareholders, and consumers. Judges can and should play a greater role in resolving liability questions in tort disputes in order to restore clarity, consistency, predictability, and accountability to this area of the law.

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