The Rule of Law:           

Perspectives on Legal and Judicial Reform in West Virginia.

Edited by Russell S. Sobel

Published by the The Public Policy Foundation of West Virginia through its Center for Economic Growth. This research made possible by support from the West Virginia University College of Business & Economics Kendrick Fund for Free Market Research.

 


 

 


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Executive Summary:

Like a three-legged stool, West Virginia’s tax policy, regulatory climate, and legal system, must all be properly structured to create the right balance for economic growth. While all three of these areas were addressed in Unleashing Capitalism, only two of the book’s 14 chapters were devoted to judicial and legal reform. With this now becoming a pressing political issue, The Rule of Law devotes itself entirely to that subject. The ‘rule of law’ is a broad concept that describes a society that is governed not by people, but instead by established, fair, and predictable rules of interaction.

The first six chapters examine reform of West Virginia’s method of selecting judges. As one of the few remaining states employing partisan political elections to select judges, there are calls for switching to either nonpartisan elections or some form of gubernatorial appointment. These chapters provide competing viewpoints, with some authors (O’Connor, Bryant, Tabarrok, and Hall/Sobel) being in favor of judicial selection reform and others (Bonneau and McLeod) not, and this is why we title this section a symposium.

The six chapters that make up part two of this book explore a host of other pressing issues in legal reform. Edward Lopez (Chapter 7) argues for restrictions on punitive damage awards in breach of contract actions, and restrictions on eminent domain to prohibit private to private transfers of property. Kristen Leddy and Matthew Yanni argue for the elimination of the doctrine of joint and several liability in all civil tort claims, imposing meaningful venue requirements, imposing limits on (or changing the standard for awarding) punitive damages, and changes to medical monitoring to either eliminate lump sum awards or require the money actually be spent on medical monitoring. The chapter by Matthew Bowles and Mark Sadd (Chapter 10) argues that West Virginia should join the vast majority of other states that guarantee their citizens an appeal of right, and handle these cases through an intermediate court system. Ronda Harvey’s chapter (Chapter 11) calls for changes to the standard used to decide deliberate intent in workers’ compensation cases. Finally, the concluding chapter by Evan Jenkins and Juliet Terry (Chapter 12) shows the considerable evidence on the effectiveness of recent reforms to our state’s medical malpractice laws. They also express concern that future court decisions could strike down major provisions of this highly successful reform.

We hope that readers will come away with a better understanding of the need for, and issues involved with, changes to West Virginia’s judicial and legal systems. Once again, our main goal is to provide the research that can inform state policy decisions, and to open a much needed dialogue on growth-oriented policy reform in West Virginia.

Edited by: Russell S. Sobel

Associate Editor: Joshua C. Hall


Table of Contents:

    Front Matter (Title Page, Table of Contents, Preface) [by Russell S. Sobel] 


Part I: Symposium on Judicial Selection Reform

    Chapter 1: A Letter from Justice O’Connor [by The Honorable Sandra Day O’Connor]

    Chapter 2: Statement on Judicial Campaign Finance Reform [by The Honorable Wanda G. Bryant]

    Chapter 3: Judicial Elections, Electoral Incentives, and Checks and Balances [by Alexander Tabarrok]

    Chapter 4: Judicial Selection Methods and Legal System Quality [by Joshua C. Hall and Russell S. Sobel]

    Chapter 5: How to Choose Judges: West Virginia’s Difficult Problem [by Aman McLeod]

    Chapter 6: Judicial Elections: Facts vs. Myths [by Chris W. Bonneau]

Part II: Other Perspectives on Legal Reform

    Chapter 7: The Law and Economics of Property and Contract [by Edward J. López]

    Chapter 8: Should We Keep This Court? An Economic Examination of Recent Decisions Made by the
        West Virginia Supreme Court of Appeals [by Kristen M. Leddy, Russell S. Sobel, and Matthew T. Yanni]

    Chapter 9: West Virginia Legal Liability Reform [by Kristen M. Leddy and Matthew T. Yanni]

    Chapter 10: Appealing Changes: A Case for Expanding Appellate Review in West Virginia’s Judiciary
        [by Matthew R. Bowles and Mark A. Sadd]

    Chapter 11: Deliberate Intent, A Unique Cause of Action in West Virginia for Employee On-The-Job Injuries:
        Is It Really Negligent Intent? [by Ronda L. Harvey]

    Chapter 12: Medical Liability Reform in West Virginia: Is It Working? Will It Last? [by Evan H. Jenkins and Juliet A. Terry]

    About the Authors


Selections from inside:
The Rule of Law
 

 
“I wish you success as you consider reforms to the judicial selection methods used in West Virginia that will safeguard judicial independence and the rule of law in the years to come…  An appointment process for judges followed by periodic retention elections offers clear advantages over partisan judicial elections…  If contested judicial elections are to continue, they should be made non-partisan.” (from Chapter 1)
—The Honorable Sandra Day O’Connor
Supreme Court of the United States (Retired)

“I have run for election under the old partisan system which allowed private financing of judicial campaigns as well as the new public financing system.  I am very pleased to say that North Carolina's first-ever publicly funded appellate judicial elections were successful, just as subsequent ones have been. The nonpartisan aspect of campaign reform is also a welcome change.” (from Chapter 2)
—The Honorable Wanda G. Bryant
North Carolina Court of Appeals

 “Just like other politicians, elected judges have an incentive to serve their constituents… In particular, an elected judge has an incentive to transfer wealth from out-of-state corporations with deep pockets to in-state plaintiffs… Awards against businesses in general are larger in partisan states than in non-partisan states, but the majority of the partisan effect is due to a particular bias against out-of-state business defendants.” (from Chapter 3)
—Alexander Tabarrok, Ph.D.
George
Mason University

  “We propose the creation of the Court of Appeals of West Virginia in conjunction with a right of first appeal in most cases…  It would ensure, first, greater opportunity for justice or sense of justice for litigants in specific cases and reduce uncorrected judicial error.  Second, it would enhance the consistent application of the law throughout the State and increase public confidence in the judicial branch…  An appeal of right will bring West Virginia in step with virtually every other one of her sister states…”  (from Chapter 10)
—Matthew R. Bowles and Mark A. Sadd
Lewis Glasser Casey & Rollins PLLC

“The question of what is considered a deliberate injury has been the subject of tremendous debate in both the civil court system and legislative arena for the past three decades.  Many believe that West Virginia’s current standard is too broadly interpreted, resulting in too many workers’ compensation lawsuits, and an unnecessarily high cost of doing business in the state.” (from Chapter 11)
—Ronda L. Harvey
Bowles, Rice, McDavid, Graff & Love LLP

 
West Virginia’s health care delivery system … was pushed to the breaking point several years ago because physicians could not find or afford medical liability insurance coverage, lawmakers were able to take action, and the results thus far show success … but all of this progress could vanish if the Supreme Court strikes down major provisions of the Medical Professional Liability Act.” (from Chapter 12)
—Evan H. Jenkins
West Virginia
State
Medical Association

 
“The most fundamental point of law and economics is that legal rules and regulations act like implicit prices on people’s behavior. We know from basic economics, as well as from our own experience, that consumer demand goes down when prices increase... Law and economics says that people follow similar thought processes when evaluating the legal implications of their decisions.” (from Chapter 7)
—Edward J. López, Ph.D.
San Jose
State University




 


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