The idea that wealthy people use their money to influence things, including politics, law, and media will surprise very few people. However, as Michael S. Kang and Joanna Shepherd argue in this readable and rich study of the state judiciary, the effect of money on judicial outcomes should disturb and anger everyone. In the current system that elects state judges, the rich and powerful can spend money to elect and re-elect judges who decide cases the way they want. Free to Judge is about how and why money increasingly affects the dispensation of justice in our legal system, and what can be done to stop it.
One of the barriers to action in the past has been an inability to prove that campaign donations influence state judicial decision-making. In this book, Kang and Shepherd answer that challenge for the first time, with a rigorous empirical study of campaign finance and judicial decision-making data. Pairing this with interviews of past and present judges, they create a compelling and persuasive account of people like Marsha Ternus, the first Iowa state supreme court justice to be voted out of office after her decision in a same-sex marriage case. The threat of such an outcome, and the desire to win reelection, results in judges demonstrably leaning towards the interests and preferences of their campaign donors across all cases.
Free to Judge is thus able to identify the pieces of our current system that invite bias, such as judicial reelection, and what reforms should focus on. This thoughtful and compellingly written book will be required reading for anybody who cares about creating a more just legal system.
About the authors
Michael S. Kang is the Class of 1940 Professor at Northwestern University's Pritzker School of Law. He recently served on the Presidential Commission on the Supreme Court and was the co-editor of Race, Reform, and Regulation of the Electoral Process (2011). He has also published extensively in law reviews including Yale Law Journal and Stanford Law Review.
Joanna M. Shepherd is Vice Dean and Thomas Simmons Professor of Law at Emory University School of Law. She is the author of two previous books and her work has appeared in dozens of legal and academic publications including The Journal of Law & Economics, Stanford Law Review, and Michigan Law Review. Her empirical research has been cited by numerous courts, including twice by the U.S. Supreme Court.
"State judiciaries receive short shrift in much of legal education and scholarship, which is a great pity given how important and interesting they are. In this wonderful and path breaking new book, two of the most creative and clear thinkers about courts apply their considerable theoretical and empirical skills to study the impact of money on state judicial elections. This book is going to change the way many of us think and teach about the judiciary."
—Mitu Gulati, University of Virginia
"Professors Shepherd and Kang thoughtfully address an issue toxic to our democracy: the influence of campaign money in state judicial elections. As their research shows, this money pushes judges away from the rule of law and makes judges pawns of their donors. Fortunately, Shepherd and Kang also suggest a feasible and effective reform."
—Marsha Ternus, former chief justice Iowa Supreme Court
"An original approach to an important topic, this book is written in an engaging and accessibly way. The unique empirical analysis allows the authors to make a compelling case about the effects of campaign finance on judicial behavior."
—Erwin Chemerinsky, author of Worse Than Nothing: The Dangerous Fallacy of Originalism
"Ingeniously blending data science and legal analysis, this is an innovative and accessible program for justice system reform."
—Publishers Weekly starred review