"If I could wave a magic wand ... I would wave it to secure some kind of merit selection of judges across the country," O'Connor said at a conference [yesterday].

Story here.

The judiciary has been a neglected area in public choice research. Although there are strong signs of a counter trend. Of course, Alex Tabarrok and Eric Helland have some nice work on this, summarized in their book Judge and Jury. Andrew Hanssen has some good papers, too (like this one). In addition, in my forthcoming book, Law without Romance, there is a nice chapter on judicial and prosecutor selection by Russ Sobel, Josh Hall, and Matt Ryan. They find (1) that false murder convictions spike around election of DAs and (2) that surveys of judicial quality are lowest in states with partisan election of judges, better in non-partisan elections, and best in appointment states. Currently I am at Clemson attending a Festschrift for Bob Tollison (more on this tomorrow), where I've learned that a promising graduate student is working on this as well.

I'm beginning to really like Justice O'Connor. However, institutional changes like this warrant a word of caution. See beneath the fold for a flavor why.

"It is ironical that we seem to go in cycles on many issues of public policy. If we do not like the results in a given area and markets are being used, it is common to hear a recommendation that we turn to government enterprises or regulation. If government is already directly involved, reformers will suggest that markets be tried. If we do not like the performance of our government officials and they have been appointed, someone will suggest that the positions be filled by civil service professionals. And, if they are already civil servants but seem unresponsive to change, we say power is too dispersed and more managers should be selected by elected officials. If we note that the garbage does not get picked up and bus lines are poor, we may advocate that all of the individual political subdivisions be consolidated into a single metropolitan government; if we already have a large centralized government, we may advocate forming neighborhood school boards, giving more power to precinct police captains, and creating mini-city halls to bring government closer to the people.

"With respect to institutional choice, we seem to be acting in ignorance. We go through cycles of reform with great promise of results only to find failure ans some new round of reformers advocating return to where we started. This situation could be the result of a change in the balance of power. Different groups who benefit from different rules may come to power and change the rules to their benefit, and then they are defeated, the rules are changed back. But even those who control choice cannot always find the institution that really serves their interests. They can choose any rule they want, but they are not sure what the result will be. How many times have we watched group spend their political capital, obtain a new rule, and then receive no change in performance?

"Economics and the other social sciences have historically played only a minor role in predicting consequences of institutional change. Trial and error have played a large role."

A. Allan Schmid, "Property, Power, & Public Choice: An Inquiry into Law and Economics," 2 ed., Praeger, 1987. pp.xii-xii.