Alabama State Bar General Counsel Tony McLain retires
By Kent Faulk, al.com
June 21, 2013
MONTGOMERY, Alabama - The man who has led the policing of Alabama's legal profession for nearly two decades is retiring.
Tony McLain is retiring after 25 years on the Alabama State Bar staff - the past 18 years as general counsel, the bar announced today.
"Tony's a great guy," said Alabama State Bar President Phillip McCallum. "He was really the face of the bar - really the lead lawyer in the state."
As general counsel, McLain was responsible for overseeing the operations of the Center for Professional Responsibility, which investigates and prosecutes bar complaints, issues ethics opinions to lawyers, represents the bar in state and federal litigation, and provides legal advice to the bar's governing and policy-making body, the Board of Bar Commissioners, according to a statement from the bar.
McClain has acted as an adviser to attorneys around the state when difficult issues, including ones involving ethical implications, arose, McCallum said. "He is a man beyond reproach," he said.
McLain, who was raised in Headland, received his undergraduate degree from Auburn University and earned his law degree from Cumberland Law School, according to a bar statement. After graduating from law school, he served as an assistant attorney general during the administrations of Attorneys General Bill Baxley and Charlie Graddick. He then practiced law in the firm of McLain & Hampton for nine years before joining the state bar in 1988 as assistant general counsel.
McClain has served as president of Cumberland's National Alumni Association and was the recipient of the school's distinguished alumnus award. McLain and his wife, Leah, live in Montgomery.
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Alabama State Bar's general counsel to retire
June 21, 2013
The general counsel for the Alabama State Bar will be stepping down after serving 18 years in that position.
AL.com reports the Alabama State Bar announced the retirement of Tony McLain on Friday. McLain spent a total of 25 years with the State Bar. As general counsel, McLain was responsible for overseeing the operations of the Center for Professional Responsibility.
The center investigates and prosecutes complaints, issues ethics opinions and provides legal advice to the Board of Bar Commissioners.
In his role, McLain has acted as an adviser to attorneys around the state.
A graduate of Auburn University, he earned his law degree from Cumberland Law School. He previously served as an assistant attorney general under Attorneys General Bill Baxley and Charlie Graddick.
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J. Anthony McLain retires as general counsel for the state bar
Antrenise Cole, Birmingham Business Journal
June 21, 2013
The Alabama State Bar Friday announced the retirement of its long-time general counsel J. Anthony McLain.
As general counsel, McLain was responsible for overseeing the operations of the Center for Professional Responsibility, which investigates and prosecutes bar complaints, issues ethics opinions to lawyers, represents the bar in state and federal litigation and provides legal advice to the bar’s governing and policy-making body, the board of bar commissioners, the bar said in a news release.
McLain was a member of the bar’s staff for 25 years and was named as general counsel in 1995.
“Though he was the chief disciplinary and enforcement officer over all the lawyers in the state and took those responsibilities very seriously, Tony was more of a ‘head coach’ who cared very deeply about his ‘players’, the rules of the game, and the profession,” said Alabama State Bar President Phillip W. McCallum. “His service to the bar has been highlighted by an unwavering commitment to excellence and an adherence to ethical principles, strong leadership and an exemplary work ethic.”
After graduating from Cumberland Law School, McLain served as an assistant attorney general during the administrations of Attorneys General Bill Baxley and Charlie Graddick. He then practiced law in the firm of McLain & Hampton for nine years before joining the state bar in 1988 as assistant general counsel.
McCallum said there are no immediate plans to replace McLain.
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Ala. Supreme Court appoints Weller to be new clerk
The Associated Press
June 25, 2013
Supreme Court has unanimously selected Montgomery attorney Julia Jordan Weller to be the court's new clerk.
She will succeed Robert Esdale, who is retiring at the end of this month after nearly 30 years as clerk. She will be the first woman to serve as Alabama Supreme Court clerk.
Weller currently serves as chief administrative law judge in the attorney general's office.
Chief Justice Roy Moore says Weller was selected from more than 50 candidates. He calls Weller an experienced attorney who has demonstrated "exceptional professionalism and integrity." She is a graduate of the University of Alabama and Cumberland School of Law.
Moore says a staff attorney with the clerk's office, Ann Wilson, has been appointed to be acting clerk until Weller officially begins her new job.
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North Alabama federal public defender: Budget cuts will force staff layoffs
By Kent Faulk, al.com
June 25, 2013
BIRMINGHAM, Alabama - The federal public defender for north Alabama said today that he plans to lay off at least three workers _ including one attorney - on his 15-member staff because of pending federal budget cuts.
One Birmingham attorney called the cuts to federal public defender offices around the nation a threat to the 1963 landmark U.S. Supreme Court decision in Gideon v. Wainwright - that an indigent defendant has a right to a court appointed attorney.
The budget cuts also will likely mean long delays in reimbursements for those private practice attorneys who are appointed to indigent criminal cases, possibly leading many lawyers to stop providing the service, said Birmingham attorney John Lentine. "If it (budget cuts) keeps going the right to counsel will mean nothing for indigent defendants," he said.
Federal public defender offices around the nation are grappling with how to deal with cuts.
Kevin Butler, the federal public defender for the northern district of Alabama, said besides the three workers he plans to let go Oct. 1, he also may be faced with laying off a fourth person - another attorney - if they can't trim enough in their budget.
"We have been advised to anticipate a 23 percent budget cut," Butler said.
The cut includes the 10 percent already trimmed from the budget this fiscal year, mostly due to sequestration - the automatic cuts to the federal budget that took place March 1.
The cuts came in the first year of the office, which has a mission to represent indigent federal criminal defendants in 31 north Alabama counties. Before last year the district was one of only four districts - of 94 nationwide - that did not have a federal public defender office. Before the office was created, judges assigned all indigent defense cases to lawyers on a special panel.
"Our office is new," Butler said. "These budget cuts are particularly stinging in that the office was coming together effectively as a unit."
Butler, however, said they will continue to accept more indigent cases from the federal courts. "We will be forced to do more with substantially less," he said.
But Butler said that he is confident the office's representation of indigent clients from the office "will be outstanding."
Butler said he has already informed the attorney and two administrative support staff that they are to be let go with the beginning of the new fiscal year so they will have time to find jobs.
The north Alabama federal public defender has offices in Birmingham and Huntsville.
The Criminal Justice Act of 1964 set up a system in which private practice attorneys could be reimbursed for representing indigent clients. The northern district of Alabama, until last year, relied solely on a panel of CJA attorneys to represent indigent clients in federal criminal prosecutions.
Despite the creation of a federal public defender office, CJA attorneys were being assigned cases, although at a slower rate.
Lentine said that budget cuts could force the use of more CJA attorneys. But if the budget cuts also delay reimbursement then many of the CJA panel attorneys could stop, he said.
"We are on the precipice of disaster," Lentine said.
Also today, the National Association of Criminal Defense Lawyers issued a statement regarding the budget cuts. "These cuts are having a devastating effect on the nation's federal defenders, and delayed payments are inflicting extraordinary hardship on the small firm and solo practitioners who provide indigent defense services through a panel appointment system," according to the statement.
The group also criticized a recent move to put the Office of Defender Services from a department to a group within the Administrative Office of the United States Courts.
"ODS not only continues to lack institutional independence, which is critical to our adversarial system and the proper administration of justice, but has now been demoted," according to the statement.
According to the statement, the American Bar Association recently reaffirmed its support for "an independent federally funded Center for Indigent Defense Services" to help state, local, tribal and territorial governments in providing indigent defense.
"NACDL supports the creation of such an entity with the additional responsibility of overseeing the federal indigent defense system," NACDL President Steven D. Benjamin stated in the press release. "Recent events have demonstrated that the federal indigent defense system must be vested with the same independence as the judicial and prosecutorial functions."
The federal budget cuts are not related to the funding of state public defender offices to defend those charged with crimes in state court. The Birmingham division of Jefferson County is in the middle of creating its first public defender office.
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Ala. Supreme Court clerk retiring after 30 years
By PHILLIP RAWLS, Associated Press
June 21, 2013
MONTGOMERY, Ala. (AP) — Robert G. Esdale started a new career at the point in his life when most people are counting the years toward retirement. Now that he's 85, he's decided it's time to end that new career, which lasted nearly 30 years.
Esdale is retiring as clerk of the Alabama Supreme Court and leaving a job that put him in the middle of the change from all Democrats to all Republicans, from paper records to electronic, and from traditional court processes to more use of mediation.
Present and former Supreme Court justices and some of the state's top lawyers, including several presidents of the Alabama Bar, gathered in Montgomery on Tuesday evening to honor Esdale in advance of his retirement June 30.
"We have trusted and relied on Bob a long time," Justice Mike Bolin said at the retirement party.
"He was always there. You could always count on him," Chief Justice Roy Moore said.
Montgomery attorney Walter Byars, a past bar president, has known Esdale since they were fraternity pledges at the University of Alabama. He said the key to Esdale's success was being a top trial lawyer in Birmingham before becoming clerk. Once he got the job, he was always willing to help lawyers practicing before the state's highest court.
"This is his legacy," Byars said.
Esdale, known as Bob to his friends, practiced as a trial lawyer in Birmingham for 20 years before becoming vice president and general counsel of Moore-Handley. When the company was being sold 30 years ago, he was considering taking a job in New York until his plans took an unusual change.
The Alabama Supreme Court was looking for a clerk in November 1983. Esdale hadn't applied, but the search committee reached out to him.
In the job, Esdale has nine bosses because that's the number of justices. He said he had served with eight chief justices and 30 associate justices.
"I liked and admired every single one of them," he said.
It was reflected by the Democrats and Republicans who gave him a standing ovation at his retirement party.
Esdale has spent the last 30 years commuting between his home in Vestavia Hills and a small place he kept in Montgomery. While he's unsure about his plans for retirement, he said he won't miss the Interstate 65 drive.
Bolin said 55 people have applied to replace Esdale. He speculated that the unusually high number is due to Esdale doing such a good job that he made the clerk's duties look like "an easy gig."
It will be up to the justices to select Esdale's successor. The job has been paying $141,785 annually, according to the state payroll records.
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Bailey named state's top family court judge
By Rick Harmon, Montgomery Advertiser
June 15, 2013
It didn’t take long for Bob Bailey to earn the distinction of Alabama’s Family Court Judge of the Year.
But his speed in achieving the honor — he only was sworn in as a Montgomery Family Court Judge in June 2011 — is misleading.
“I was a juvenile court referee (a court officer who hears juvenile cases and then makes decisions on them that must be signed off on by a judge) for a long time before I was appointed to the bench in 2011,” he said. “I was a juvenile referee in the courts fulltime for about 23 years before that, and actually did it part-time for nine years prior to that.
“So while I’ve only been a family court judge for about two years now, I’ve been around for a long time.”
Does the award, voted upon by the Family Law Section of the Alabama State Bar, mean more because he received it after only two years on the bench?
Bailey says no.
“Certainly, it means a lot to me,” he said. “But I don’t know if I could be more honored by it receiving it after two years than I would be if I’d received it after being here 15 or 20. I’d be just as honored by it either way. I know how many great family court judges there are around the state.”
He admits that some family court cases can be difficult.
Most cases wind up being amicable and many are settled before being heard, he said, but some can become extremely emotional.
“The worst are the ones where parents become so angry with each other that their children’s needs seem to become secondary to them getting back at each other,” he said.
As far as what he did to win the award, Bailey said if he had to guess, it would be his dedication to showing respect for everyone in front of his bench.
“I’ve always tried to treat people with respect and to give everyone the opportunity to say what they want to say,” he said. “I’ve found that if you let them have their say, most people feel more satisfied with the result. They just want to feel they have had the opportunity to present their case.”
Both Presiding Circuit Court Judge Charles Price and District Attorney Ellen Brooks have said it would be difficult to come up with a better family court judge.
“Bob Bailey fits this job like a hand in a glove,” Price said.
Brooks, who has known Bailey since 1977 when both were new members of the Montgomery County district attorney’s office, said few others have been as well-prepared for the role of family court judge. She also pointed out that the Bailey family was chosen the 2010 Family of the Year, “which shows you that he not only talks the talk, but walks the walk.”
Bailey’s wife, Jannah Bailey, is the well-known executive director of Child Protect.
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Largest State Poised to Require Practical Skills Training
Karen Sloan, The National Law Journal
A task force of the State Bar of California has recommended that new attorneys be required to complete at least 15 hours of practical skills training and 50 hours of pro bono service before they are admitted to practice.
If adopted, California would be the first state to mandate real-world training in law schools and the second to require pro bono work of new attorneys. New York was the first state to require pro bono work and a judicial committee in New Jersey has recommended the move.
The California proposal awaits action by the state bar board of trustees.
"We want to better prepare lawyers to face the challenges and reach the potential that brought them to law school in the first place," State Bar President Patrick Kelly said.
State bar executive director Joseph Dunn said the bar's board of directors appears supportive of the proposal and could vote as early as October. If that happens, the rules would be implemented as early as 2015.
The state task force on admissions regulation reform held eight public hearings in Los Angeles and San Francisco before formally recommending the proposal on Tuesday.
The practical skills training requirement could be fulfilled in two ways: First, students could take at least 15 credit hours (about 25 percent of the typical course load) of practical training during their second and third years of law school. Eligible courses likely would include clinics, externships or simulation courses. Law schools would be responsible for certifying which course meet the criteria to fulfill the bar's requirement.
Second, law school graduates could spend at least six months in a bar-approved apprenticeship, clerkship or externship. The task force wanted to give new lawyers some flexibility in meeting the practical skill requirement, according to its report.
The proposed practical skills requirement has received a lukewarm reaction from law school administrators. Some, including University of California Hastings College of the Law dean Frank Wu, view such a requirement as overdue and not too difficult for most schools to meet. Others, including deans at Stanford Law School, Santa Clara University School of Law and the University of Southern California Gould School of Law, have argued that law schools are already integrating practical skills into their curricula and that any mandate could hamstring students and teachers.
In addition to the practical skills requirement and pro bono mandate, the task force would require that new lawyers complete an additional 10 hours of continuing legal education courses.
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Reform or die, report warns legal profession
By Ian Mulgrew, Vancouver Sun (Canada)
June 20, 2013
Many lawyers will be out of work if the profession doesn't consider radical reforms of how it does business in the face of 21st-century challenges and consumer anger.
A thoughtful new 44-page report by the Canadian Bar Association warns that the country's 37,000 legal professionals, about 10,000 of them in B.C., are in big trouble.
The short-term outlook is bleak: earnings will be flat or plummet, corporations will chop legal spending by one-third to one-half, and mid-sized law firms could disappear.
Called the Legal Futures Initiative, the report synthesizes seven accompanying research studies in an attempt to stimulate discussion. Recommendations and a strategy for change will follow in the summer from the profession's political arm.
The central message is loud and clear: Globalization, new technology and public frustration demand change.
At the same time, there is a glut of lawyers. The profession has been growing at five times the rate of the population since 2000, and one in five lawyers works for a government agency.
Fed up with archaic rules and legal bills that are too high and too difficult to control, corporate and individual clients want lawyers to change what they do and how they do it; how much they charge and how they charge for it.
They want more fixed-rate services and more say in the management of their files.
"The recent economic slowdown brought this into focus," the report says.
"With more choice and access to technology-based solutions, clients have been emboldened to question the basic value proposition of lawyers and the cost of legal services. There has also been a change in client expectations of their legal service providers. Aside from better prices, clients want more information on services, more involvement in decision-making and greater knowledge of the risks and potential outcomes of various legal strategies."
The monopoly that lawyers have enjoyed is ending. There has been a growth in paralegals, global legal publishers, legal process outsourcers, virtual law firms and publicly traded law firms, and a host of other changes are occurring.
"Alternate business structures which feature non-lawyer ownership are already legal in England and Wales as are publicly-traded firms in various jurisdictions outside Canada," the report notes.
"Canadian law firms, large and small, and sole practitioners will have to consider new options for operating in a changing marketplace."
The report says this is an opportunity for the profession to "reinvent itself and thereby ensure that it remains dynamic and confident."
"For example, the future could see the development of a full-blown, technology-enabled legal marketplace, including virtual law firms," it suggests.
"The growth of artificial intelligence could replace lawyers for many tasks such as 'assisted discovery' and eventually even advice, at the same time saving clients both time and money."
We could hope! The association, however, has been talking about change now for several years in various documents.
Like the reforms necessary to improve access to justice, the problems are easier identified and endlessly discussed than fixed.
One hurdle is trying to have a national discussion when the profession is structured provincially.
Also, in terms of alternative business arrangements, in Canada we regulate lawyers, not law firms. That shift alone poses a whole range of complications about multi-jurisdictional practices and the role of a firm in ethical or other misconduct issues.
Moreover, lawyers as a group are far from a homogeneous gang - they're independent, independently minded professionals involved in different legal fields, jurisdictions and markets.
Still, the data and the research being generated is making it more and more difficult for lawyers, judges and policy-makers to keep their heads in the sand.
Planning and decision-making have long been hampered by a lack of hard data on the legal industry in Canada. While data does exist, here and there, there is no organization responsible for capturing the information that firms, industry and government need.
"Without hard information, key decisions are often made on anecdotal information or precedent," the report pointed out.
"Imperfections in the marketplace in the past may have masked and protected against errors created by such less rigorous processes. As the market share of the industry declines and excess capacity appears, fact-based decisions will become more and more necessary."
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Program Will Prep Hispanic Youths For Careers in the Law
Karen Sloan, The National Law Journal
Will a week of law classes, mock trials and law-themed field trips inspire high school students to pursue legal careers?
The Hispanic National Bar Association’s Legal Education Fund hopes so. For the first time, the organization is sending a group of 22 Hispanic high school students from around the country to Los Angeles for a weeklong crash course in the law.
Participants in the Legal Education Action Program (LEAP) will take law classes taught by faculty from Pepperdine University School of Law and Southwestern Law School and will rub elbows with law students, practitioners and judges. The program kicks off on Sunday.
“LEAP was developed to ensure Hispanic youth of diverse backgrounds obtain the skills and tools necessary to achieve academic success, realize their potential and become tomorrow's legal and business leaders,” said Omar Vargas, president of the fund.
Organizers hope LEAP also will help improve the overall diversity of the profession. Minorities account for 25 percent law students nationally, according to the American Bar Association, and Hispanics for fewer than 8 percent. Only 3.7 percent of lawyers in the United States are of Hispanic origin, according the 2010 census.
Diversity advocates for years have been trying to strengthen the so-called pipeline to law school by exposing undergraduates, high school students and even elementary students to the law through mock trial competitions, lawyers talks, court visits or support and preparation for the Law School Admission Test. Those programs often emphasize outreach to minority or low-income students who otherwise might not consider legal careers. LEAP is among the more intensive of those efforts.
The inaugural class of 22 LEAP participants was selected from more than 100 applicants, hailing from all over the country. Organizers looked at the applicants’ backgrounds and affinity for a legal career, Vargas said. Three-quarters are from low-income homes and two-thirds from single-parent families, he added.
“We want to inspire them to make the leap from high school to college, and get them to start planning for a law career early,” Vargas said. “If we plant the seed of these ideas early, they will keep that in mind as they move into college.”
The high schoolers will be housed at Pepperdine’s campus on the Malibu cliffs overlooking the Pacific Ocean. Organizers hope that atmosphere will inspire the students.
In addition to attending classes on the basics of the U.S. legal system, the students will observe an oral argument before U.S. Court of Appeals for the Ninth Circuit and visit a federal trial courthouse. Organizers have lined up three law students to serve as onsite mentors. The week will culminate in a moot court competition.
Organizers plan to stay in touch with the LEAP participants as they graduate from high school and move into college, Vargas said. They hope to expand the size of the program and move it to different cities each summer. Nashville, Tenn., and Minneapolis are possibilities.
Ultimately, the fund would like to add a companion LEAP program for undergraduate students.
Alabama State Bar is Boston Strong
May 30, 2013
"We are all Bostonians" is how Keith B. Norman, executive director of the Alabama State Bar paraphrased President John F. Kennedy in a recent letter of support to the Massachusetts Bar Association.
On May 3, 2013, the Alabama State Bar Board of Bar Commissioners adopted a resolution that recognized "the people of Boston who responded so unselfishly to lend assistance to the victims" of the Marathon Bombing.
"The pluck of this great city during and following this tragic episode was an inspiration to Americans everywhere," Norman said.
Through its resolution, members of the Alabama Bar offer their deepest sympathies to the victims of the Boston bombings while giving highest praise to each person who assisted those injured on that fateful day. The resolution also notes that lawyers are a "vital part of keeping 'Boston Strong'" and help to maintain the integrity of the American legal process that offers all suspects a fair and impartial trial.
This resolution was sent to the mayor of Boston, the chairman of the Boston Marathon and the presidents of the Massachusetts Bar and Boston Bar associations.
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Law school offers a three-day taste of campus life for about $1,000
By Debra Cassens Weiss, ABAJournal.com
June 7, 2013
William & Mary’s law school has launched a new program aimed at helping nonlawyers understand the law—and offering a taste of law school to those who are considering entering the profession.
The course, “Introduction to the U.S. Legal System,” has two parts, Law Technology News reports in a story noted by TaxProf Blog. There are semester-long online classes that meet twice a week and include interactive discussions. And there is a three-day on-campus program where students can interact with faculty and classmates and get exposure to law-school life.
The program targets nonlawyer professionals who work with lawyers in settings such as courts, law firms and legislatures. The full course costs $2,799 for those who miss discounts for early enrollment or being a member of the Federal Court Clerks Association.
Those who would like to skip the online course can pay $1,049 for only the on-campus, three-day program. Fredric Lederer, who will be principal instructor for the program, tells Law Technology News that the on-campus program may help those considering law school.
"This program can help people decide whether law school is right for them,” Lederer said. “If they do go to law school, it should give them a major leg up in their first year,"
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Report: Campaign Contributions Influence State Courts
The National Law Journal
A study released on Tuesday by the American Constitution Society for Law and Policy identified a "statistically significant" relationship between ballooning campaign contributions by business interest to state supreme court candidates and pro-business decisions by those courts.
Researchers studied more than 2,345 business-related state high court opinions between 2010 and 2012 and campaign contributions during that same time to sitting state high court judges. As the percentage of contributions from business groups went up, the probability of a pro-business vote by judges — defined as any decision that made a business better off — went up as well.
The study's author was Joanna Shepherd, a professor at Emory University School of Law. During a teleconference, she said the findings demonstrated that state court elections were becoming increasingly politicized and expensive. She pointed to surveys showing concern within the judiciary and among the general public about the influence of outside dollars on the courts.
"The more campaign contributions from business interests the justices receive, the more likely they are to vote for business litigants when they appear before them in court," she concluded in her report.
According to the report, business groups, lawyers and lobbyists historically contributed the most money in state court elections. Business interest groups gave more than $62.6 million between 2000 and 2009, 30 percent of all contributions. Shepherd cited national and state chambers of commerce as examples of the contributors studied. Lawyers — especially the plaintiffs' bar and lobbyists — gave $59.3 million, or 28 percent.
Researchers studied 175,000 campaign contribution records from 2010 to 2012 or the most recent year before 2010 when a state supreme court justice was up for re-election. The average justice received $62,400 from business groups. In partisan elections, the report said, justices on average received at least a quarter of all contributions from business groups.
To study the potential influence of those contributions, researchers measured the contribution data against more than 10,000 judicial votes in cases involving a business and a government entity or other litigant; disputes between two businesses weren't included, Shepherd said. They counted any favorable ruling for the business party as pro-business. Of the votes studied, 49 percent qualified as pro-business.
Twenty-one states use partisan or nonpartisan elections to choose judges for state supreme courts, according to the report, while a governor or the legislature appoints judges in 29 states. Nineteen states hold partisan or nonpartisan elections when a judge's term is up and 18 states use retention elections, meaning that voters only decide whether a judge should stay on the bench, as opposed to elections in which candidates can challenge an incumbent.
In the remaining states, judges are either reappointed by the governor, legislature or nominating committee, or their appointments are permanent.
The data didn't show a relationship between campaign contributions and judicial decision-making in states that held retention elections. Campaign contributions were highest in partisan elections.
The researchers reported a stronger relationship between campaign contributions and pro-business judicial decisions by Democrat-affiliated judges. Shepherd speculated that this might be because right-leaning judges tended to "be more ideologically predisposed to favor business interests." The report showed that Republican-affiliated candidates typically received more money from business groups.
Shepherd cited the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission as having the most significant effect on campaign contributions in state supreme court elections. Such contributions had risen steadily during the past two decades but were significantly higher post-Citizen United, she said.
"Until reforms are enacted, powerful interest groups' influence on judicial outcomes will only intensify," she wrote.