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Paid justice and the power to choose the judge
In Brief
- Paying judges by fees was long defended as a spur to diligence: Adam Smith, author of The Wealth of Nations, admired French courts that had never been suspected of corruption, and explained it by their being paid according to the work they did.
- When an official's pay depends on the volume of cases, the proper execution of the law and private gain pull in different directions, whatever his personal honesty; reformers therefore judged the system, not the man.
- Replacing fees with salaries can relocate dependence rather than abolish it: a salaried judge is independent only if his pay does not hang on the goodwill of those in power.
- Bias can be built into procedure as well as into payment: where one party alone decides whether and where a case is heard, as with landlords filing for summary eviction while tenants had to post a bond to defend themselves, the path to judgment bends toward that party.
Main authors
Every court costs money, and someone has to pay for it. In a protest against law-taxes published in 1843, Jeremy Bentham pictured a court that charges suitors who cannot pay as a baker's shop: loaves arranged in the window to draw customers, who are then robbed of their money and turned out of doors without bread [1]. He called the arrangement “the alliance between justice and finance” [1]. The image concerns the suitor at the counter. It leaves open a second question, harder to settle: what does the money do to the person behind the counter?
Two answers have long faced each other. The first holds that a judge paid by the business he handles will handle it diligently, and that justice can pay for itself; Adam Smith admired courts paid in this way and thought fees could cover the whole expense of justice [2, 3]. The second holds that a judge or court officer paid by the case acquires a stake in the case. President Grover Cleveland condemned any system making the pay of court officials depend on the volume of business, because it set the law against private gain [4]. Both camps argue about the judge's purse. The texts suggest that the decisive variable lies elsewhere, in the hand that brings the case to court. When one party alone decides whether and where a dispute is heard, payment, speed and procedure tend to bend toward that party, and the bias belongs to the structure rather than to the character of the judge.
Adam Smith and the fee-paid Parliament of Toulouse
The case for fees rested on a simple intuition about effort. A judge paid by the year can wait; a judge paid by the act has to work. John Rae, Smith's biographer, reports that Smith thought highly of the French parliaments as institutions [2]. They were not very convenient courts of law, Smith conceded, yet they had never even been suspected of corruption. His explanation, which Rae calls curious, was that they were paid not by salary but by “fees dependent on their diligence” [2]. Rae adds that while Smith lived in Toulouse, the town was raging over one of its Parliament's judgments—and, strangely enough, mostly took the court's side [2]. A court paid by its work, on this view, stayed above suspicion of corruption.
Fees also promised something no salary could: a justice that cost the treasury nothing. In The Wealth of Nations, in 1776, Smith argued that court fees might defray the whole expense of justice without real danger of corruption, relieving the public revenue of a small burden [3]. His worry lay elsewhere. Fees, he wrote, are hard to regulate when someone as powerful as the sovereign shares in them, and very easy to regulate when the judge is the main beneficiary [3]. The danger, for Smith, was the powerful partner, not the judge. More than two centuries later, the 2013 agreement creating a Unified Patent Court still aimed at a self-financing court with balanced finances, while requiring its fees to preserve fair access for small firms, individuals and universities [5]. The ambition survived, now with a limit attached.
Smith, however, also recorded a precaution against fees. In the same work he records that judges had been forbidden to accept any present or fee from the parties—not to make lawsuits cheaper, but to prevent the corruption of justice [6]. Since lawyers' fees far exceeded judicial salaries, the ban saved suitors little; its purpose was integrity [6]. Nor did he treat the salary as innocent. A judge's regular pay, he insisted, should not depend on the goodwill, or even the good economy, of the executive power [7]. The alternative to fees thus risks swapping one dependence for another: on the parties, or on the state.
The fee system lasted longest where it seemed most harmless, in the small courts of daily life. Simeon E. Baldwin, describing the American judiciary, noted that most judges drew a fixed salary, but that justices of the peace, and in some states probate and insolvency judges, were paid by fees at statutory rates for business done [8]. Such judges, he observed, sometimes earned far more than anyone would have proposed to pay them from the public treasury [8]. He knew the remedy—fewer justices, on fixed salaries—and why it was resisted: neighborhood quarrels seemed to need only common sense, and salaries for all would burden the taxpayer [9]. The last reason he lists for that resistance is the most revealing: the system was ancient, and “it works well with honest men” [9].
Cleveland, Bentham and the baker at the window
The reformers' first objection was arithmetical. If an official's income rises with the number of cases, his interest runs against the public's. Grover Cleveland, in a presidential message, urged that the fee system paying federal attorneys, marshals, clerks and commissioners be abolished with as little delay as possible [10]. The community's interest, he argued, was that the business of the courts be as small and inexpensive as justice allowed [10]. A system paying officials by the volume of that business was therefore “thoroughly vicious”: it pitted the proper execution of the law against private gain [4].
Fees bred more than an incentive; they bred a culture. John Cordy Jeaffreson, in his book about lawyers, described courts where everyone, from the highest judge to the lowest usher, was trained to collect small sums for trifling services [11]. They learned to multiply occasions for payment and to invent devices for what he called “legitimate peculation” [11]. The result was opacity. In time, nobody could say how much a suitor was bound to pay at each stage of a suit, and the fees, Jeaffreson adds, had an equally bad influence on the public [11].
Bentham moved the objection from the judge to the suitor. A fee demanded before a hearing, he argued, weighs heaviest on the poorest claim [12]. Refusing to hear a working man's demand for a shilling is more unjust than refusing a duke's demand for fifty pounds; a legislator who requires of the working man what he cannot pay refuses him justice as completely as it can be refused [12]. More than a century later, a Senate report quoted in Sullivan v. Hudson made the same point in plainer words. When the cost of contesting a government order exceeds the amount at stake, it is more practical to endure an injustice than to fight it [13].
By the early 20th century, the suspicion had spread from the judge to the institution. A contributor to Popular Science Monthly wrote in 1914 that the popular impression of courts organized to give business to lawyers and jobs to place-hunters, rather than to serve justice, was not without foundation [14]. The cost of the system to litigants and taxpayers, he predicted, would sooner or later draw public scrutiny [14]. The question was no longer whether a given officer was honest. It was whom the machinery served.
Mayors paid in costs and the limits of honor
The decisive step was to judge the structure rather than the man. In Tumey v. Ohio, William Howard Taft, writing for the Supreme Court, considered mayors who sat in judgment with $12 in costs riding on each case [15]. He granted that some of them doubtless would never let such a sum affect their judgment. But due process, he wrote, is not satisfied by the argument that “men of the highest honor and the greatest self-sacrifice” could run such a system without danger of injustice [15]. The sentence reverses the old defense of fees. Where the defense Baldwin reported trusted a system that worked well with honest men, Taft demanded one that would hold with ordinary ones [9, 15].
Not every interest disqualifies a judge, and the same opinion shows where the line runs. It rehearses an older reasoning about penalties paid into a town's treasury: the sum lightens a burden shared by every citizen, and judge, sheriff and jurors are merely members of a corporation of many thousand people [16]. Such an interest, that reasoning holds, is too slight to excite prejudice against a defendant [16]. The test is one of distance. A benefit diluted across a whole community leaves the mind free; a sum tied to each case the judge decides is another matter [16, 15].
The cure was the salary, but the salary had its own price. Theodore Roosevelt, in a State of the Union address, urged Congress to double the pay of the nation's judges, beginning with the Supreme Court [17]. Their salaries were so small, he argued, that public service meant a heavy pecuniary sacrifice [17]. The echo is striking, though the word shifts. Taft refused to count on the self-sacrifice of a mayor paid by costs; Roosevelt said the salaried judge bore a heavy pecuniary sacrifice [17, 15]. And Smith's warning still held: a salary secures independence only if its regular payment does not hang on the goodwill of those in power [7].
Both camps, diligence and interest alike, looked at the same thing: what the judge gains from a case. Neither asked where the cases come from. Yet fees were paid, in Baldwin's words, for “business done” [8], and Cleveland's complaint was about the volume of that business [4]. Volume is not set by the court alone. None of these writers draws the conclusion, but their premises point toward it: a court paid by the case is, in part, paid by whoever chooses to bring it cases [8, 4].
Landlords, arbitrators and the hand that chooses the court
Bentham saw the asymmetry plainly. To become a plaintiff is a choice; to become a defendant is not, or not altogether [18]. His examples are ruinous on both sides: one case showed that a man could not safely sue without £28,000 in his pocket, another that resisting even an unjust demand could require an outlay of £800 [18]. The plaintiff holds the door. In a court paid by its business, he is also the one who brings the income. The texts do not show judges openly competing for plaintiffs. They show something quieter: procedures shaped around the party who starts the case.
Summary eviction makes that shape visible. A landlord seeking possession could simply file an affidavit in a local court; under Georgia's scheme, an indigent tenant could offer no defense at all without posting a surety bond worth double the rent that might be due by the end of trial [19, 20]. In Williams v. Shaffer, tenants unable to post the bond were evicted without a hearing, solely because of their poverty [21]. The same text describes default judgments obtained at great speed because the poor cannot afford counsel, and housing laws with “a built-in bias against the poor” [22]. William O. Douglas, dissenting in another eviction case, put it bluntly: eviction laws emphasize speed for the benefit of landlords [23]. None of these texts says the judges were paid by fees. The bias they describe needs no fee; it is enough that one party opens the case and the procedure is built for his speed.
The power to choose the forum is, more broadly, a power over the outcome. A writer in The Strand Magazine warned in 1891 that the system of his day placed a dangerous weapon in the hands of a wealthy litigant who chose to drag his opponent from court to court, inflating costs through interlocutory proceedings [24]. More than a century later, an opinion in United States v. Texas counted forum shopping among the dangers of granting plaintiffs the broadest possible relief, even as plaintiffs argued that everyone deserved to benefit from their suit [25]. In both cases, the party who controls which court hears the dispute does more than pursue it. He chooses the terrain.
Arbitration turns the choice of judge into an explicit act, and shows what disclosure can do. In Commonwealth Coatings, Hugo Black accepted that arbitrators cannot sever all their ties with the business world, since they are not expected to earn their whole income from deciding cases [26]. His answer was disclosure. Any relationship should be revealed at the outset, while the parties are still free to reject the arbitrator or to accept him knowingly [27]. Because arbitrators decide law and facts alike without appellate review, he added, their impartiality calls for even more scrupulous care than a judge's [26]. The interest is not abolished. It is placed before both parties.
The same device changes character when the rules around it favor one side. The dissent in Coinbase v. Bielski recalled that an arbitration agreement is “a specialized kind of forum-selection clause” [28]. It objected that the majority's new rule on automatic stays would perpetually favor one class of litigants—defendants seeking arbitration [29]. Yet the choice of forum can also shelter the weak. In R. H. Tawney's account of the 16th-century agrarian problem, a court of last resort stepped in when other means of redress had broken down, to keep peasants from becoming victims of legal chicanery and intimidation [30]. What matters is not that a forum is chosen, but who holds the choice, and for whom the door is kept open.
The long quarrel over courts paid by fees set two intuitions against each other. Its defenders, Adam Smith foremost, saw in payment by the case a spur to diligence and a way for justice to pay for itself [2, 3]. Its critics, from Bentham to Cleveland, saw a tax that shut out the poor and officials whose income grew with litigation [12, 4]. The turning point came when the law stopped relying on the judge's virtue: in Tumey v. Ohio, the Supreme Court held that due process cannot rest on the argument that men of the highest honor would resist a stake in each case [15]. Salaries replaced fees, but, as Smith warned, a salary secures independence only if its regular payment does not depend on the goodwill of the power that pays [7].
Both sides left aside the hand that brings cases to court. A plaintiff chooses whether and where to sue; a defendant does not, or not altogether [18]. When that choice lies with one side alone—a landlord filing for summary eviction while the tenant must post a bond to be heard, a wealthy litigant dragging an opponent from court to court—procedure bends toward the one who holds that choice [20, 24]. When both sides can refuse, as with an arbitrator whose ties are disclosed in advance, the interest at least stands in plain view [27]. A judge can be freed from the parties' money. Impartiality also asks who holds the door to his court.
