Volume 2009, No. 1

Address

Thoughts on How the Legal System Treats Jurors
United States Attorney Patrick J. Fitzgerald

The Thomas E. Fairchild Lecture, University of Wisconsin Law School, April 18, 2008.

Article

Judicial Independence and Nonpartisan Elections
Brandice Canes-Wrone & Tom S. Clark

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections. Instead, nonpartisan elections create the incentive for judges to cater to public opinion

, and this pressure is particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of last resort between 1980 and 2006. Analyzing nearly 600 decisions from sixteen states, we demonstrate that public opinion about abortion policy affects judicial decisions in nonpartisan systems, while no such relationship exists in states with partisan elections. Accordingly, this Article suggests that in states with nonpartisan elections, public opinion plays an underappreciated role in the courtroom.

Comment

Firm Offers: Are Publicly Traded Law Firms Abroad Indicative of the Future of the United States Legal Sector?
Justin D. Petzold

In May 2007, the concept of a publicly traded law firm became a reality when an Australian firm became the first in the world to have its equity trade on a public market. Legislation passed in the United Kingdom 2007 will allow U.K. firms to do the same. While legal scholars have broached the idea of allowing publicly traded law firms in the United States

, such proposals have met with little success. This begs the question, why? This Comment seeks to paint a picture of the intellectual debates surrounding the passage of reforms that allowed for publicly traded law firms in Australia and the United Kingdom in an effort to predict whether similar reform is likely to occur soon in the United States. It concludes that, because U.S. legal commentators have defined the problems that arguably warrant reform differently than had commentators in Australia and the United Kingdom, reform is unlikely at this time in the United States. Nevertheless, the possibility of competition from international publicly traded law firms could provide a new incentive for reform in the United States in the near future.

Note

Non-Economic-Damage Award Caps in Wisconsin: Why Ferdon Was (Almost) Right and the Law is Wrong
Damian Stutz

Wisconsin considers noneconomic damages subordinate to economic damages in medical-malpractice actions. The state legislature has repeatedly enacted legislation to cap the amount of noneconomic damages a jury can award, ostensibly to solve a health-care system in crisis. In 2005, the Wisconsin Supreme Court in Ferdon v. Wisconsin Patients Compensation Fund

invalidated a cap as unconstitutional; in response, the legislature simply increased the cap amount. This Note analyzes the legal and political implications of non-economic-damage award limits, and reasons that the new cap is just as unconstitutional as the old one. Caps not only violate the equal protection clause of the Wisconsin Constitution, but offend public policy and fail to achieve the results the legislature intended. This Note concludes that a strong tort system and a functioning health-care system are not mutually exclusive. Instead of punishing those with the gravest injuries, as the cap does now, Wisconsin should recognize that victims of medical malpractice deserve the chance to be made whole. This includes more than just lost earning potential or unpaid medical bills. By trusting the jury to make this critical determination, Wisconsin can ensure equality and fairness in its tort system.