The Myth of Merit

Abstract:     
In discussing the Constitutional choices between electing judges or having them appointed by the executive, most studies focus on the different schemes used in the context of state supreme courts which began using judicial election systems in the mid 1800s, while federal judges are selected by an appointment and confirmation process. Although many of the empirical arguments about the effects of either system generally focus on the state level, Administrative Law Judges (ALJs) are part of a merit system that more closely reflects some of the more exotic systems (normally referred to as the Missouri Plan) used in states where a slate of nominees are determined by a process involving the state bar. The ALJ system is used to explain and analyze how merit systems contain an inherent tendency toward regulatory capture, and data collected regarding Social Security Disability decisions by ALJs shows the presence of regulatory capture in the ALJ system. The paper then concludes with the differences between the ALJ system and state judicial merit systems, with the conclusion that the wider jurisdiction of state judges makes the regulatory capture much more problematic.

Number of Pages in PDF File: 32

Keywords: merit systems, administrative law judges, ALJ, regulatory capture, judicial elections, state judges

working papers series