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Georgetown University Law Center




The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were more likely to adopt strict liability than appointed courts. But surprisingly, state courts elected to longer terms were the most populist. Many of these judges never expected to face another election, but even without direct political pressure they were the most responsive group of judges in adopting Rylands after the floods.

This Article offers quantitative data on the state courts and the particular judges, suggesting a pattern that judicial elections plus long terms shaped a more responsive bench. By itself, this data is suggestive but not conclusive. The Article offers an explanation for this pattern based on the judicial politics of the late nineteenth century. This Article examines three factors in judicial elections that produced this strange outcome: political incentives, selection effects, and institutional/psychological effects. Political incentives-the political pressure of the next election-appear to have been relatively insignificant considering how elected judges became more responsive as their terms got longer In terms of selection effects, judicial elections may have attracted a certain type of lawyer politician who was more attuned to public opinion and the influence of events, but it is important not to overstate these effects. Appointed and elective systems appear to have drawn judges from similar backgrounds.

Finally, judicial elections produced institutional and psychological effects. Borrowing from the nineteenth-century designers of judicial elections and twentieth-century legal historians and social psychologists, I suggest that the elected judges' "role fidelity" to the people led them to perceive public opinion as an important factor in their decisions. Elected judges with more job security could be more faithful to their role (hence, "role fidelity") and could follow their own perceptions of public interest or public opinion, rather than industrial interests. Modem social psychology offers an explanation for why judges selected by party and special interests would defect in favor of public interests: "role conflict" theory suggests that perceptions of legitimacy are decisive, and judicial elections were designed to legitimize public opinion as a source for law. Long terms built in space for political drift: drift away from party or special interests, and towards the judge's conception of public interest.

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