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. Sch olars have concluded that appointed judges are more independent than electe d judges. Models of the litigation process suggest that litigation rates wi ll be higher where uncertainty over court decisions is greater. If the inst itutions that promote judicial independence increase uncertainty, one shoul d therefore find more litigation where judges are appointed and, if instead they decrease uncertainty, more litigation where judges are elected. Exami ning three samples of state court litigation, this analysis finds, on balan ce, more litigation where judges are appointed, consistent with the hypothe sis that judicial independence has a net positive effect on decision uncert ainty.