Judges: a dying breed?

According to the reporters over at CNBC, judges are “disappearing” from the workforce:

It seems counterintuitive that we’re increasingly becoming a lawsuit-happy nation and yet, the need for judges is shrinking. The reason is simple: Budget. From the federal government on down to states, cities and towns, cash-strapped governments are slashing their budgets.

This trend is having and will have profound effects on the U.S. legal environmental.  It is true that today most cases settle (civil) or plea bargain (criminal) long before they reach trial, but they do so under the so-called “shadow of the law.”  In other words, litigants choose not to waste time and money fully arguing their cases when the payoff (winning or losing) is not worth the transaction costs of trial (years of litigation, lawyer fees, etc.).

These settlements and plea bargainings are attractive alternatives to full trials, however, only if trials (1) are an actual possibility and (2) it is reasonably certain who will win.  If there are fewer judges, (1) is undermined.  Moreover, if there are fewer trials–resulting in fewer judicial opinions–(2) is undermined insofar as there are precedents to indicate how current controversies will resolve.  In a world with few judges, potential litigants are thus left with a less-attractive reason to settle/bargain:  uncertainty.

A potentially huge penalty for losing, combined with the cost of not knowing, results in a rational decision to resolve the problem quickly.  This is fine to the extent that it lessens legal combativeness.  It is problematic to the degree that it encourages wasteful payments of “go away money” (civil) or guilty pleas to lesser crimes by the innocent (criminal).

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