Rent-a-judge

University essay from Lunds universitet/Juridiska institutionen

Abstract: The state of California is using a certain model of private judging called rent-a-judge. The subject matter of this thesis is the public policy problems surrounding the rent-a-judge and the constitutional problems it creates. These problems arise mainly because of the hybrid form of the system. On one side, rent-a-judge gives decisions equivalent to state courts' and on the other side, it is a system where the litigants are paying the judge. Rent-a-judge has been widely used in California ever since the rediscovering of the reference statute in 1976. The popularity of the system is mostly due to its speed and efficiency. Another factor for its popularity is the secrecy that rent-a-judge is providing the litigants. Rent-a-judge is the subject of several policy concerns&semic early retirements, creation of a two-tiered system, bias concerns because of repeat costumers, impediment of establishment of rules and disadvantages to the public interest. Public policy objections are mainly built upon just arguments and discussions. There is no concrete information showing how much harm rent-a-judge actually is causing. The more important objections against rent-a-judge are the constitutional ones. To be more specific, they relate to the first amendment right of access to trials and equal protection in the Fourteenth Amendment that involves a discussion on wealth as suspect classification. The First Amendment gives a right of access to criminal trials. It is however, uncertain if such a right exists when it comes to civil trials. U.S. Supreme Court rejected the opportunity of answering that question. California Supreme Court, on the other hand has acknowledged a first amendment right of access to civil trials. The equal protection in Fourteenth Amendment gives protection to groups classified as suspect class. This means that wealth needs to be acknowledged as suspect class in order to challenge rent-a-judge with the equal protection clause. U.S. Supreme Court has not acknowledged wealth as a suspect class, while California Supreme Court has done that. Rent-a-judge challenged with the First Amendment under California law should be unconstitutional. Rent-a-judge challenged with equal protection under federal law would remain to be constitutional. It is however, difficult to foresee the outcome if rent-a-judge is challenged with the equal protection clause under California law.

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