The Effect of Judicial Institutions on Uncertainty and the Rate of Litigation: The Election Versus Appointment of State Judges

This article compares litigation in appointed and elected state courts. Scholars have concluded that appointed judges are more independent than elected judges. Models of the litigation process suggest that litigation rates will be higher where uncertainty over court decisions is greater. If the institutions that promote judicial independence increase uncertainty, one should therefore find more litigation where judges are appointed and, if instead they decrease uncertainty, more litigation where judges are elected. Examining three samples of state court litigation, this analysis finds, on balance, more litigation where judges are appointed, consistent with the hypothesis that judicial independence has a net positive effect on decision uncertainty.