Volume 34 Number 4 -- June 2001

TABLE OF CONTENTS

ARTICLE

THE CONSTITUTIONALITY OF ONLINE VOTE SWAPPING

by Marc J. Randazza

In this Article, Marc J. Randazza presents a detailed analysis of the concept and practice of vote swapping during the 2000 presidential election. The author first looks at the Internet and its evolution into a powerful medium of mass communication. Then, the author examines the advent of vote-swapping Web sites during the 2000 election, which were initially conceived to help the Green Party achieve a five percent showing in the 2000 presidential election. The author focuses his state law analysis on California and Oregon, whose secretaries of state threatened the operators of certain vote-swapping Web sites with prosecution. The author contends that the actions of the secretaries of state imperiled the most fundamental of constitutional rights -- freedom of speech, assembly, and association. Lastly, the author analyzes the constitutionality of the actions of the secretaries of state under federal law and the U.S. Constitution. Applying strict scrutiny, the author concludes that vote swapping is legal, constitutionally protected speech.

SYMPOSIA

AT THE CROSSROADS OF LAW & TECHNOLOGY: SECOND ANNUAL

INTRODUCTION

by Karl Manheim

This introduction and the appellate opinion that follows are a continuation of the joint program presented by the California Institute of Technology and Loyola Law School to address the challenges facing legal institutions from new technologies. The background materials and trial court order were printed in Issue 3 of Volume 33 of the Loyola of Los Angeles Law Review.

OPINION

by the Honorable Richard A. Posner

NATIONAL SUMMIT ON IMPROVING JUDICIAL SELECTION CALL TO ACTION

INTRODUCTION: PERSONAL VIEWS

by Roy A. Schotland

WHAT MAKES JUDICIAL ELECTIONS UNIQUE?

by David B. Rottman and Roy A. Schotland

JUDICIAL RETENTION EVALUATION PROGRAMS

by Seth S. Andersen

Judicial retention evaluation programs are a key component of efforts to make judicial retention elections more meaningful contests for voters by providing objective, survey-based information on the performance of judges standing for retention. In this briefing paper, Seth S. Andersen focuses on official, state-sponsored, judicial performance evaluation programs that are used to provide voters with information and recommendations in retention elections. These programs also include an important judicial self-improvement component through confidential midterm evaluations and interviews with judges under evaluation. Based on its intensive study of retention evaluation programs in four states, the American Judicature Society has offered recommendations for ensuring the validity of evaluation programs.

INTEREST GROUPS AND JUDICIAL ELECTIONS

by Anthony Champagne

In this Article, Professor Anthony Champagne examines the increasing influence that interest groups have come to exert over judicial elections. He examines some of the political and economic forces behind this trend, and chronicles the results of interest group activities in specific state court elections. Professor Champagne explains that interest groups can have a positive effect on the democratic process of judicial elections by uniting groups of people with common views behind specific candidates. However, he notes that they can also negatively impact both the appearance and reality of fair and impartial judicial decision making, free of undue political influence. He concludes that -- for better or for worse -- interest groups will continue to play a large and growing role in the election of state court judges.

POLITICAL PARTIES AND JUDICIAL ELECTIONS

by Anthony Champagne

In this analysis of the relationship between political parties and judicial elections, Professor Anthony Champagne finds that the political parties do play a valuable role in judicial elections, but he stresses that there are downsides to involvement by the political parties. For example, the parties sometimes charge assessments for endorsements of judicial candidates, there are party sweeps at the top of the ticket that affect judicial elections, and judicial elections are made a part of partisan politics. Most importantly, there is a new partnership in judicial elections. The result, Professor Champagne concludes, is that judicial campaigns often feature controversial and unrepresentative judicial decisions along with pressures for judicial candidates to cross ethical boundaries.

JUDICIAL RETENTION ELECTIONS

by the Honorable B. Michael Dann and Randall M. Hansen

Judicial retention elections have been part of the selection and retention process in many states for over thirty years. It has been said that judicial retention elections strike the appropriate balance between the competing goals of judicial independence and public accountability. However, it has also been said that “contested retention elections are the most unfair system of all judicial elections.” In this Article, Judge B. Michael Dann and Mr. Randall M. Hansen discuss trends in retention elections, some of which are disturbing, if not alarming, and propose remedies for the problems that have beset this form of judicial election.

JUDICIAL CAMPAIGN CONDUCT: RULES, EDUCATION, AND ENFORCEMENT

by Richard A. Dove, Esq.

In this Article, Mr. Richard A. Dove discusses regulations governing judicial campaigns and the case law applying these regulations. Mr. Dove then provides an overview of efforts by the states to educate judicial candidates and the public on the rules and policies governing judicial campaigns. The author discusses plans by several states to ensure compliance with the judicial campaign conduct rules. Specifically, Mr. Dove analyzes the efforts by the states of Georgia, Michigan, Alabama, Ohio, and New York. Finally, the author discusses sanctions imposed for campaign misconduct.

PUBLICLY FINANCED JUDICIAL ELECTIONS: AN OVERVIEW

by Charles Gardner Geyh

In this Article, Professor Charles Gardner Geyh outlines the problems associated with private financing of judicial elections. The cost of public campaigns causes judges to seek funds from attorneys who may appear before them, creating an appearance of impropriety to the public. Professor Geyh discusses some of the advantages and disadvantages of public funding, and provides an analysis of Wisconsin's election campaign fund -- the only state that currently funds judicial races. Professor Geyh concludes that public financing of judicial campaigns is a viable alternative to private financing because it can control some of the adverse effects and perceptions associated with private financing.

CAMPAIGN FINANCE IN JUDICIAL ELECTIONS

by Roy A. Schotland

In this Article, Professor Roy Schotland examines some of the recommendations being made to address campaign finance issues in judicial elections. This Article initially discusses ten ways in which campaign finance problems in judicial election are unique. The article then points to recent changes made in the Model Code of Judicial Conduct to address the judicial election issues of (1) aggregate contributions, (2) appointments of lawyers who made excessive contributions, (3) conditions for requiring recusal, and (4) appropriate limits to contributions. The paper concludes by suggesting other feasible reforms for campaign finance in judicial elections, such as limiting “warchests,” limiting contributions by a law firm’s members, and public funding of judicial elections.

NOTE AND COMMENTS

FROM PUNISHMENT TO ANNIHILATION: ENGLE V. R.J. REYNOLDS TOBACCO CO. -- NO MORE BUTTS -- PUNITIVE DAMAGES HAVE GONE TOO FAR

by Meghan A. Crowley

Last fall, in Engle v. R.J. Reynolds Tobacco Co., a Florida jury returned a $145 billion punitive damages verdict against the R.J. Reynolds Tobacco Company, and several other major tobacco companies. That jury rejected the argument by the tobacco industry that an award of such magnitude would bankrupt the industry. Whether the defendants’ financial argument was correct or not, a $145 billion award is colossal, and raises questions as to whether such awards are constitutional or justified as a matter of public policy. This Comment analyzes how the skyrocketing amounts of punitive damages awards coupled with the increase in the use of aggregated punitive awards via the mass tort class action, unfairly threatens to destroy corporate defendants. This Comment concludes that the Engle verdict should be overturned in light of recent Supreme Court decisions and various policy reasons pertaining to punitive damages.

SUBSTANTIAL COMPLIANCE WITH THE CONTRACTORS’ STATE LICENSE LAW: AN EQUITABLE DOCTRINE PRODUCING INEQUITABLE RESULTS

by Lawrence Jennings Imel

Pursuant to Business and Professions Code section 7031, a contractor may maintain an action to recover compensation for the performance of contractor services only if he or she held a valid license at all times during performance of the contract or, alternatively, had substantially complied with section 7031 in maintaining his or her license in good standing. A contractor has substantially complied with section 7031 if he or she acted reasonably and in good faith to maintain licensure. This Comment examines the evolution of the substantial compliance doctrine from its origins as a judicial doctrine to its current statutory form and provides several reasons why a return to judicial substantial compliance is preferable to the current statutory scheme.

WELLS FARGO V. COMMISSIONER: DEDUCTIBILITY OF CORPORATE OFFICER SALARIES DURING MERGER AND THE NEED FOR RULES OVER STANDARDS

by Brodie H. Smith

In August 2000 the Eighth Circuit Court of Appeals, in Wells Fargo v. Commissioner, created a new test for deductibility of corporate officer salaries during merger. This Note analyzes the test within the context of the rules-versus-standards debate, arguing that the test falls squarely within the category of standards, while the issue demands a rulelike judicial test. The discussion concludes by predicting the probable effects of Wells Fargo on capitalization and deduction issues generally.