Lawmaking Judges Government and Private presented 2023 April 7.pptx

Lawmaking Judges,
Government and Private
Stephen J. Ware
Frank Edwards Tyler
Distinguished Professor of Law
University of Kansas
ware@ku.edu
785.864.9209

Our topic today won’t touch on many articles
I’ve published including:
• Farm Tractors in Kansas: How to Perfect a Security Interest,
• Security Interests, Repossessed Collateral and Turnover of
Property to the Bankruptcy Estate,
• Arbitration Agreements as Executory Contracts in Bankruptcy
After Mission Prod. Holdings, Inc. v. Tempnology, LLC,
• ADR in Cyberspace
• The Glucose Model of Mediation: Physiological Bases of
Willpower as Important Explanations for Common Mediation
Behavior

Lawmaking Judges, Government & Private
1. Judicial Lawmaking is routine, inevitable.
2. Judges’ ideologies influence the content of the law
judges make.
3. Importance of judicial ideology is why we battle
over the 3 methods of selecting government judges
and particular selections within them.
4. A fourth method of selecting judges is contract,
which selects private judges (arbitrators).
5. Judicial selections tend to reflect power under the
applicable selection method.
6. How much room for lawmaking by private judges
(arbitrators) selected by contract will government
lawmakers allow?

Top Government Judge Against
Judicial Lawmaking:
“I will remember that it’s my job to call
balls and strikes, and not to pitch or
bat.”
Statement of John G. Roberts at his
Confirmation Hearing to Be Chief Justice of the
United States: Hearing Before the S. Comm. on
the Judiciary, 109th Cong. 56 (2005).

Against Judicial Lawmaking:
Judges should apply statutes impartially,
not expansively interpret statutes the
judge likes and narrowly interpret statutes
the judge dislikes.
That is, judges should set aside their
policy preferences in deciding cases.
This fits into a representative democracy
with separation of powers.

Statutes cannot foresee all possible cases, so
statutory language can be incomplete—leaving
gaps for judges to fill.
And legislatures sometimes punt unresolved
issues to courts.
Either way, when statutes are incomplete,
vague, or ambiguous, judges must interpret
them to resolve particular cases.

So, statutory interpretation often involves
“substantial judicial discretion,” and thus
constitutes “judicial lawmaking, not
lawfinding.”
Ware, 22 Kan. J.L. & Pub. Pol'y, at 174 (2013), quoting Philip Frickey
This judicial lawmaking is routine and perhaps
inevitable.

Even more routine judicial lawmaking is
judges making the common law—big
parts of important areas of law, like
contracts and torts, are not addressed by
statute and thus remain governed by the
common law.
Even Justice Scalia agreed and accepted
“that judges in fact ‘make’ the common
law.”

So, judicial lawmaking—in both
statutory and common law cases—
is routine and long-established.
And judges are human, so …

“Liberal judges tend to reach liberal outcomes,
and conservative judges tend to reach
conservative outcomes: not in every case--
perhaps not even in many cases--but in enough
cases to make a difference. In cases where the
law is ambiguous, judges consciously or
subconsciously consult their own world views.”
“There are now stacks and stacks of books and
academic papers demonstrating that judges
with different ideological views make different
decisions in predictable ways.” Brian Fitzpatrick, 42 Okla.
City U. L. Rev. 53, 54–55 (2017).
So, judges’ ideologies influence the content of
the law.

Judges’ ideologies are especially important in
constitutional cases because
Legislatures can override judges’ statutory
interpretations and common law rules,
But legislatures cannot override judges’
constitutional interpretations.
That takes a constitutional amendment.

Importance of judicial ideology
is why we have big judicial
selection battles.
Jackson, Ketanji Brown 53-47
Barrett, Amy Coney 52-48
Kavanaugh, Brett 50-48
Gorsuch, Neil M. 54-45

Importance of judicial ideology is
why we have big judicial
selection battles—in federal and
state courts.
Recent state high court
examples in NY (senate rejected
nominee) and Wisconsin
(election flipped control).

Judicial Selection in the States
• Appointment by
Governor/Legislature
• Contestable Elections
• “Missouri Plan” (“Merit Selection”
nominating commission)

1) Applications to Supreme Court
Nominating Commission
2) Commission picks 3 finalists
3) Governor must pick 1 of the 3
Kansas Supreme Court
Current Selection Process

Commission is the gatekeeper
to the Kansas Supreme Court,
so who picks the Commission
that then picks the Supreme
Court nominees?

2,900,000 people Bar
4 5
commissioners commissioners
Governor

Bar Control of Supreme Court Selection
High Bar
Control
l l l l l l
Low Bar
Control
l
MO Plan
Comm’n
majority
selected
by bar
MO Plan
Comm’n
near
majority
selected
by bar
Nom’n
Comm’n
w/ no or
little role
for bar
Legislative
Appointment
Governor’s
Nominee
Confirmed
Non-Partisan
Elections
Partisan
Elections
Kansas Alaska
Indiana
Iowa
Missouri
New Mexico
Oklahoma
Nebraska
South Dakota
Wyoming
Arizona
Colorado
Florida
South Carolina
Virginia
California
Connecticut
Delaware
Hawaii
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
Rhode Island
Tennessee
Utah
Vermont
Arkansas
Georgia
Idaho
Kentucky
Michigan
Minnesota
Mississippi
Montana
Nevada
North Dakota
Oregon
Washington
Wisconsin
Alabama
Illinois
Louisiana
North Carolina
Ohio
Pennsylvania
Texas
West Virginia

In the contemporary US, lawyers tend to
be relatively progressive, and in nearly
every state more progressive than their
state’s voters and elected officials. As
judges are nearly always lawyers,
previous scholarship unsurprisingly finds
that judges tend to be more progressive
than their states’ voters and elected
officials.
Ware summarizing campaign contribution and voter registration
data in, and conclusions by, Fitzpatrick, 70 Vand. L. Rev. at
1733 (2017), and Adam Bonica & Maya Sen, The Politics of
Selecting the Bench from the Bar, 60 J. L. & Econ. 559 (2017).

https://data.stanford.edu/dime Principal Investigator, Adam Bonica (Stanford)
The Database on Ideology, Money in Politics, and Elections (DIME) is
intended as a general resource for the study of campaign finance and
ideology in American politics. The database was developed as part of the
project on Ideology in the Political Marketplace, which is an on-going effort to
perform a comprehensive ideological mapping of political elites, interest
groups, and donors using the common-space CFscore scaling methodology
(Bonica 2014). Constructing the database required a large-scale effort to
compile, clean, and process data on contribution records, candidate
characteristics, and election outcomes from various sources. The resulting
database contains over 130 million political contributions made by individuals
and organizations to local, state, and federal elections spanning a period
from 1979 to 2014. A corresponding database of candidates and committees
provides additional information on state and federal elections.
The included measures of ideology have been extensively validated across
several studies spanning a variety of institutional settings and types of
actors. A compendium of these validation results can be accessed here.
The DIME+ data repository on congressional activity extends DIME to cover
detailed data on legislative voting, lawmaking, and political rhetoric. (See
https://data.stanford.edu/dime-plus for details.)

In nearly every state,
judges tend to be more progressive than
their states’ voters and elected officials.
Prof. Fitzpatrick refers to that as “leftward
judicial skew.”

Prof. Fitzpatrick’s data show that the size
of this leftward judicial “skew” compared to
the state’s voters varies according to the
method by which judges are selected. The
leftward judicial skew tends to be larger in
Missouri Plan states—that is, states that
privilege the bar with seats on the judicial
nominating commission—than in states in
which judges are selected by elected
officials or by partisan elections.
Ware, summarizing Fitzpatrick, 70 Vand. L. Rev. at 1733 (2017).

These findings support the
straightforward hypothesis that a
judicial selection process empowering
a relatively progressive group (the
bar) tends toward more progressive
judges, while judicial selection by the
voters, or by the voters’ elected
representatives, tends toward judges
more ideologically compatible with
those voters.

Bonica & Sen, 60 J. L. & Econ. 559, 583 (2017):

Judicial Selection in the States
• Appointment by
Judicial ideology matters in each.

Judicial Selection, Govt & Private
• Appointment by
• By contract (arbitration
agreement)

Arbitration = private-sector court
The Federal Arbitration Act basically
instructs (government) courts
enforce:
agreements to arbitrate, and
Arbitrators’ decisions (“awards”)

“courts are subsidized by the taxpayer. The fees litigants pay to
courts do not cover the full cost of the judge, jury, court clerk,
other administrative personnel, and the courthouse itself. By
contrast, parties to arbitration must pay the arbitrator's fee, as
well as the administrative costs of the arbitration organization,
and any cost of the hearing room.”
“We start with the expectation that well-informed people do not
ordinarily pay thousands of dollars to get what they can get
elsewhere for free.”
So, we ask, why any sophisticated parties choose arbitration
over litigation?
Christopher R. Drahozal & Stephen J. Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. on Disp.
Resol. 433, 451–52 (2010)

Among the commonly cited reasons:
1. arbitration may be faster and cheaper than litigation;
2. arbitration may lessen the risk of punitive damages awards
or aberrational jury verdicts;
3. arbitration may decrease exposure to class actions or other
forms of aggregate litigation;
4. arbitration may result in more accurate outcomes because of
arbitrator expertise and incentives;
5. arbitration may better protect confidential information from
disclosure;
6. arbitration may enhance the ability of parties to have their
disputes resolved using trade rules; and
7. arbitration may enable the parties to better preserve their
relationship.
Christopher R. Drahozal & Stephen J. Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. on Disp.
Resol. 433, 451–52 (2010)

Who are the private judges (arbitrators)
selected pursuant to the arbitration clauses in
businesses’ form contracts with their customers
or employees?
If those arbitration agreements are selecting
private judges with a more commercial or
businesslike ideology than the average judge or
juror has, then we can see that private judicial
selection also reflects power—just here it’s the
power of contract in the private sector rather
than the political power of selecting government
judges we saw earlier.

We saw above that judicial ideology influences
(inevitable) judicial lawmaking.
Do arbitrators’ ideologies similarly influence
lawmaking?
We might say yes, because lots of evidence
that many a party to arbitration tries to get an
arbitrator likely to rule for that party.
Much like many a party to litigation tries to get a
judge or jury likely to rule for that party.

Or we might say arbitrator ideology, unlike
judicial ideology, does not influence lawmaking
because arbitrators don’t make law.
That is, we might say judges’ “lawmaking” is
making rulings that will serve as precedents
guiding future cases involving other parties.
But arbitration traditionally produces only “one-
off” decisions the parties keep confidential, so
they’re not published or available to guide other
parties.

However, some arbitration decisions (awards)
are published. And others, although not
published for all to see, may be available within
the group that has agreed to arbitrate, such as
members of a trade association, like the
National Grain and Feed Association or NY
Diamond Dealers Club.
Trade association arbitration is the classic
example of a private lawmaking system.

Trade association arbitration often privatizes:
1. “statutory” lawmaking, because trade ass’n
arbitrators apply written association rules rather
than government statutes;
2. “common law” making because trade ass’n
arbitrators learn and try to follow each other’s
precedents; and
3. enforcement, because trade ass’n arbitration
awards are typically enforced through private
sanctions, such as publicity or threat of expulsion
from the trade association. Only rarely do parties
go to government court to enforce awards in trade
association arbitrations.
Little commercial subculture with its own ideology
reflected in its “statutes” and “judges” lawmaking.

Suppose a member of a trade ass’n asks a
government court to enforce an arbitration
award made under private law contrary to
government law?
Would government courts enforce arbitration
awards applying private “trade ass’n law”, rather
than government law?
Law on this is not well developed, and probably
depends on what is the government law
arbitration is avoiding: contrast sale of goods
between merchants with, say, employment
discrimination.

So, private lawmaking by arbitration systems raises
the grand question of the extent to which parties’
freedom of contract allows them to replace
government law with their own privately-created law.
Or, conversely, the extent to which government law will
restrict that privatization, either to protect:
• vulnerable parties to arbitration agreements they
don’t really want (“you’re fired unless you sign this
arb. agreement”), or
• “public values” from people segregating themselves
into their private “gated communities.”

Here’s the pro-privatizing vision I wrote many
years ago:
“arbitration can produce a sophisticated,
comprehensive legal system. Even better, it can
produce many such systems. The law--
unwritten norms, written rules and decisional
law--of the Widget Dealers Association may
differ from the law of the Gadget Dealers
Association. Both may differ from the laws of
the Sierra Club, the Alabama Baptist
Convention, the American Association of
Retired People, the Rotary Club, or the Saab
Owners Association.”

There is diversity [different groups’ laws]
because what is best for some is not best for
others. But there is also a process of
experimentation in which lawmakers learn from
each other and copy laws which seem better.
There may even be open competition among
different lawmakers to earn money by
producing better laws. A market for law
develops. This privatized system produces
better law than does a system in which
government monopolizes lawmaking.”
Would government lawmakers permit this
growth of private lawmaking to happen?

Lawmaking Judges Government and Private presented 2023 April 7.pptx

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Lawmaking Judges Government and Private presented 2023 April 7.pptx