Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?

AuthorMichael H. LeRoy
PositionProfessor, School of Labor and Employment Relations and College of Law, University of Illinois at Urbana–Champaign

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I Introduction
A Context for This Empirical Research

Do partisan elections of judges1 contribute to unequal justice in court decisions? Caperton v. A.T. Massey Co., involving a $50 million civil judgment against a large coal company,2 highlights the relevance of this question. While appealing this adverse ruling, A.T. Massey’s president spent more than $3 million to help elect Brent Benjamin as a new justice to West Virginia’s highest court.3 After Justice Benjamin cast the deciding vote to reverse the entire judgment, the losing party, Hugh Caperton, appealed to the U.S. Supreme Court, arguing that he was denied due process.4 By a 5–4 vote, the Supreme Court ruled in favor of Caperton, concluding that there is a “serious risk of actual bias”5 when a litigant has “a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”6

Although Caperton may be an extreme example, West Virginia is not alone in using partisan elections to select judges. Eleven states use this method for selecting trial judges,7 and six states use partisan judicial elections for trial-, appellate-, and supreme-court positions.8 The remainder use nonpartisan elections and various merit-based appointment methods. Federal judges are selected for lifetime appointment, rather than through partisan or nonpartisan elections. However, while state courts may not be as prestigious as federal courts, state courts handle more than 90% of all judicial matters in the United States,9 and nearly 89% of state-court judges face elections.10 Thus, as Caperton illustrates, political contributions in judicial elections have the potential to dramatically affect the administration of justice in the United States. My particular focus on partisan judicialPage 1573 elections reflects research that suggests this selection method is most prone to abuse and excessive spending.11

This Article analyzes how corporations may be using political contributions in partisan judicial elections as part of their strategy to minimize liability in employment disputes. Corporate employers have tried to avoid liability in employment disputes for years. Many employers try to avoid lawsuits by requiring employment arbitration.12 Employers also draft their employment contracts to ensure the use of favorable arbitration rules.13 However, although employees are expected to fare worse inPage 1574 arbitration compared to litigation, the opposite often occurs—they frequently win the award.14 Anticipating this possibility, employers then try to control the next stage in the dispute-resolution process by designating a particular court to review an award.15 In the arbitration agreements they draft, some employers also provide courts with expanded grounds for reviewing awards—thus opening the door for “re-arbitrating” their case.16 And increasingly, state courts recognize more grounds to vacate awards than federal courts. This is an important development, because state courts have already been less deferential than their federal counterparts in their review of arbitration awards.17

Figure 1 summarizes the historical efforts outlined above that corporate employers have taken to avoid liability in employment disputes. Thus, Figure 1 represents what this Article refers to as the “liability avoidance model.” The purpose of this Article is to examine the most recent addition to the liability-avoidance model, which appears as the final stage in Figure 1. This Article presents a study that suggests that some employers may be using this stage to avoid liability by strategically supporting state judges who run for office in political campaigns.

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Part II explains the liability-avoidance model that is diagrammed above. Part II.A describes how employers, prior to a dispute, require workers to waive court access in favor of arbitration. Part II.B discusses the employer’s choice of a private forum and process rules. Part II.C reviews surprising research showing how employees win more often during arbitration than anyone predicted. Finally, Part II.D explains how employers challenge arbitrator rulings—called “awards”—in court.

Part III surveys the election of state judges and the growing influence of contributions in these campaigns. In Part IV, I report my research methods and statistical results. Part IV.A states my research hypothesis: judges who run in partisan elections will rule more often for employers than judges who are appointed or who run in nonpartisan elections. I then report my results and findings in Part IV.C–D, including my main finding that employees won only 32.1% of cases before party-affiliated judges compared to winning 52.7% of cases before judges who were appointed or elected in nonpartisan races.18

In Part V, I suggest proposals to deal with the problem of influence in partisan judicial campaigns, including tighter recusal standards for judges, narrower standards for judicial review of awards, and regulation of campaign behavior under the Caperton ruling.19

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II The Strategic Avoidance of Liability Through Mandatory Employment Arbitration
A Pre-Dispute Phase: The Emergence of Mandatory Employment Arbitration

Pre-Dispute (Fig. 1, Box 1): As employers have experienced larger litigation costs in employment disputes,20 many have responded by imposing mandatory arbitration agreements for employees.21 These contracts bar individuals from suing employers and require arbitration as an alternative forum for disputes arising during the employment relationship.22 Thus, employers implement mandatory arbitration as a strategy to avoid courts andPage 1577 costs.23 This Part explores the changes in the employment-law landscape that led employers to seek refuge from expensive courtroom battles. Then, this Part analyzes the U.S. Supreme Court case that made mandatory arbitration agreements a viable option.

1. Rise in Employment-Law Litigation

Employers adopted this first step in the liability-avoidance model after a series of rapid and profound changes in employment law. For more than a century, the doctrine of employment-at-will defined American employment law, allowing either the employer or individual to terminate the work relationship at any time, for any reason.24 However, fundamental changes in government regulation of employment during the 1960s altered this arrangement. For example, Congress passed sweeping employment-discrimination laws.25 In addition, state courts developed common-law exceptions to the employment-at-will doctrine.26

As the field of employment law expanded, so did employer liability. A critical threshold was reached when courts applied tort theories and remedies to workplace disputes. Courts created protection for whistleblowers27 and crafted a public-policy exemption to the employment-at-will doctrine,28 which exposed employers to new liability. Then, courtsPage 1578 allowed employees to sue their employers for intentional infliction of emotional distress,29 assault and battery in severe cases of sexual harassment,30 negligence,31 and defamation.32 State constitutions compounded this trend by creating privacy rights for workers.33

In the early 1990s, Congress joined two critical streams in employment law by expanding employer liability, particularly under anti-discrimination laws, and by encouraging the application of alternative-dispute-resolution (“ADR”) processes to workplace disputes. The 1991 Civil Rights Act34 and the 1992 Americans with Disabilities Act35 posed a liability threat to employers. Employment-discrimination lawsuits in federal courts doubled in five years, as filings soared from 8273 in 1990 to 19,059 in 1995.36

To put this trend in perspective, consider that employment claims, including those under Title VII of the 1964 Civil Rights Act, comprised about 52% of all civil-rights cases filed in federal courts in 1995.37 The 1991 amendments expressly allowed discrimination victims to recover up to $300,000 in punitive damages.38 This supplemented the strong remedial provisions in Title VII.39 In short, employers felt the dual impact of surgingPage 1579 discrimination claims and more potent remedies that became available to each new litigant. As the tide of litigation costs began to rise sharply in the 1990s, a Supreme Court decision offered employers a promising refuge.

2. Supreme Court’s Approval of Mandatory Arbitration

In Gilmer...

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