Do partisan elections of judges produce unequal justice when courts review employment arbitrations?

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Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. In Caperton v. A.T. Massey Co., the U.S. Supreme Court ruled that it violated a party's due-process rights to allow a state supreme-court justice to hear a case and cast the deciding vote when the opposing party was a company whose president had previously contributed $3 million to the justice's election campaign. This Article examines how judicial elections affect the administration of justice. Specifically, this Article examines whether partisan judicial elections affect courts' review of arbitrator rulings (called "awards") in employment disputes. For this study, I have identified 223 state-court rulings from 1975 to 2008 that involved the review of employment-arbitration awards. Then, for each case, I have determined the method of selection for each of the respective judges. I relate this empirical research to a strategic model of corporate avoidance of liability in employment disputes, or what I call the "liability avoidance" model. Some employers avoid lawsuits by requiring employment arbitration. Then, during these mandated arbitrations, employers often require the use of rules that are favorable to the employer. In the event that an arbitrator decides against the employer, the employer may seek to appeal the decision to a court. And, when employers appeal arbitration awards to a court, they continue to influence the outcome by designating the particular court that reviews the award. This model suggests that some employers would expand their influence by strategically supporting judges who run for office in political campaigns. The results of the study conducted for this Article support the proposition that employers may be influencing judges who are selected by partisan elections. I found that where an award was challenged in state trial courts, employees won only 32.1% of cases before party-affiliated judges. But in states where judges were appointed or elected in nonpartisan races, employees prevailed in 52.7% of the cases. The partisan-election effect was not observed, however, in appellate cases. Employees won 43.2% of cases before party-affiliated judges and 50.0% of cases before judges who were appointed or elected in nonpartisan races. These results provide preliminary and limited support for the concern that partisan judicial elections produce unequal justice for ordinary people who are not large campaign donors. But, there are important caveats. This study did not determine whether the judges in these cases actually accepted campaign support from employer groups. These judges may have ruled through a more ideological prism than appointed and nonpartisan judges. In the same vein, the finding of no partisan effect at the appellate level is not conclusive-and does not mean that party-affiliated appellate judges are as neutral as their appointed counterparts. Even in partisan judicial elections, it appears that only some appellate candidates raise war chests and declare campaign positions. A seemingly biased judge, such as the justice in Caperton, can be outvoted by more neutral judges on the appellate panel, thereby muffling the effect of campaign spending in partisan elections. My findings do not prove that employers seek venue before judges who receive their campaign contributions, but they offer preliminary statistical evidence that suggests that this is possible. The fact that employers can designate venue in an arbitration contract reinforces this possibility. In sum, the shocking example in Caperton, along with the preliminary data in my study, suggests that employers may be able to expand the liability-avoidance model by donating to judges who may ultimately review their employment-arbitration awards.

Original languageEnglish (US)
Pages (from-to)1569-1620
Number of pages52
JournalIowa Law Review
Issue number5
StatePublished - Jul 1 2010

ASJC Scopus subject areas

  • Law


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