Random Thoughts from the High Desert
Written by Sig Silber
When thinking about the Judiciary generally the academics focus on metrics related to the job performance and other organizations tend to have an agenda not that this is necessarily bad.
I have been wondering if there is a way to assess the impact of the quality of the judiciary on the economic performance of a Nation and in this case I am focused on the U.S.
“The most productive court in our 1998 to 2000 dataset wasGeorgia’s (58.33 opinions perjudge-year); the least productive was New Mexico’s (10.07 opinions per judge-year); the medianstate was Kansas (23.0 opinions per judge per year). A judge who publishes frequently might writelower-quality opinions than a judge who writes and publishes less frequently. So productivity isonly a partial measure of a judge’s mmerits.”
Overall, California was the most-cited court for the 1998 to 2000 period, with 33.76outside citations per judge-year (majority opinions only). Oklahoma’s criminal highcourt was the least cited,with 3.69 outside citations per judge-year. The median statewas South Dakota (13.07 outside citations per judge-year).
“The independence score ranges from -1 (least independent) to1 (most independent). The courtwith the highest mean independence score among judges for the 1998 to 2000 period wasRhode Island’s, with a mean independence score of 0.19; the least independent court was thatof Mississippi, which had a mean independence score of -0.31. The median was -0.02.”
Prior Studies Worst
But how to translate this to the impact on our economy? Ine attempt was made by micronomics now a subsidiary of ERS Group and the full report can be found here. They looked at teh impact of delays whcih they expresses as case clareances on the ability of litigant to deplo capital and is is what they came up with. Aothough the level of case clearances varies from year to year this is what they reporte for 2009.
Theproblem I have with their report is that they have studies the Los Angelos Superior Court (LASC) iln etail. They estimaed $15B in economic lossess associated with increae uncertaintly among litigants but als $13B in business activity due to decreAsded utiliation of legval services. I dkd not undertand that calcualtioon and do not consider a loss of income by attorney to be a bad thing for society but it is figured into SDO and GDP.
The 2007 ABA Model Code of Judicial Conduct Commentary to Rule 2.2. supports the use of judicial discretion in hearing SRLs noting “ It is not a violation of this Rule [2.2], however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” This commentary emphasizes the judge’s ability to exercise discretion when SRLs present their case. At least 14 states have adopted the language of commentary 4.
My own personal experience in New Mexico is that judges are not willing to provide a pro se litigant with a fair consideration of their grievance. But then again I am fuly aware that many litigants in New Mexico with the best attornies also do not receive fair treatment by the courts. I do not beleive this is a New Mexico problem but essentially the result of our courts being overloaded and Legislatures not seen the importance of the judicary performing at a high level of effectiveness or even recognizing what a high level of effectiveness would entail. . Never-the-less it is discouraging that justice is not avaialbe to other than those with extensive resources and dogged determination. That has to have a negative impact on the economy of New Mexico and the U.S. even if we do not know exactly how to quantify it.
All around me I see people making decisions based on the failure of the Judiciary to do their job and many of these decisions are counter to economic development. Businesses are not started, purchases are not made, marriages do not occur, perhaps even children are not conceived because of the high risk of dealing with a judiciary that is focused more on procedures than decisions.
On flaw I find in the system structurally is that attorneys in many cases are paid by the hour while judges are generally paid a wage and evaluated by the number of cases reolved. On the face of it this woudl not appear to be a system that favors the client.