The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

New Guidance for Judges and Judicial Employees Using Social Media

Posted by judicialethicsforum on Tuesday, June, 24, 2014

In addition to the recent ABA Ethics Opinion taking a generally pro-social-media tone, two new judicial ethics advisory opinions have been issued for federal and state judges.

First, for federal judges, the Committee on Codes of Conduct issued Opinion 112 in March.  It generally condemns various behavior on social media (e.g., “maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the [judge's or judicial] employee’s own court,” “any use of a judge’s or judicial employee’s court email address to engage in social media or professional social networking,” and “‘liking’ or becoming a ‘fan’ of a political candidate or movement”).  The full Opinion 112 can be found here.  The link is also helpful because it contains the full text of the Committee’s opinions from the past five years.

Second, the Arizona Judicial Ethics Advisory Committee issued Opinion 14-01 in May.  It examines in a fair amount of detail the ethical issues arising from LinkedIn and Facebook (among other platforms) for both judges and judicial employees.  For example, it concludes that both judges and judicial employees generally should not recommend (or arguably endorse) attorneys on LinkedIn who appear in the court.  Turning to Facebook, it concludes that being a Facebook friend with a lawyer does not necessitate recusal in every case involving that lawyer, but the relationship might need to be disclosed to the parties, and if the judge is actually biased or if the judge’s impartiality might reasonably be questioned, simply “defriending” the lawyer will not fix the disqualification problem.  Similar to the federal opinion above, this state opinion also concludes that “a judge may not be a ‘friend’ of or ‘like’ [a legislator's] or another judge’s reelection campaign Facebook page because Rule 4.1(A)(3) prohibits judges from endorsing another candidate for any public office.”  Click here for the full opinion.  By the way, for an interesting Facebook-based disqualification case, see Chace v. Loisel, 2014 WL 258620 (Fl. Dist. Ct. App. Jan. 24, 2014).  There, the judge had tried to friend a litigant on Facebook, and the litigant essentially rejected the request based on advice from the litigant’s attorney.  The litigant claimed that the judge thereafter issued retaliatory rulings against her because she had rejected the judge’s friend request, and the litigant moved for disqualification.  The appeals court concluded that these facts were facially sufficient to warrant disqualification.

Posted in Canon 4, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

New Scholarship: Judicial Error Correction, Performance Review, Lobbying, and Federal Regulation

Posted by judicialethicsforum on Tuesday, June, 24, 2014

Judge McKoski’s article (see post below) is part of a judicial ethics issue of the Arizona Law Review, which is dedicated to an exemplary and impactful lawyer, Mark Hummels, who was recently murdered after a mediation.  The issue includes good articles on the following topics, with links:

(1) Andrew D. Hurwitz, When Judges Err: Is Confession Good for the Soul?, 56 Ariz. L. Rev. 343 (2014).

(2) Rebecca White Berch & Erin Norris Bass, Judicial Performance Review in Arizona: A Critical Assessment, 56 Ariz. L. Rev. 353 (2014).

(3) Dr. Roger E. Hartley, “It’s Called Lunch”: Judicial Ethics and the Political and Legal Space for the Judiciary to Lobby, 56 Ariz. L. Rev. 383 (2014).

(4) Russell R. Wheeler, A Primer on Regulating Federal Judicial Ethics, 56 Ariz. L. Rev. 479 (2014).

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New Judicial Ethics Scholarship: McKoski on Improving Disqualification Law

Posted by judicialethicsforum on Tuesday, June, 24, 2014

Judge/Prof. Ray McKoski has just finished an interesting piece arguing against the common disqualification test (i.e., when the judge’s impartiality might reasonably be questioned) and arguing for preemptory challenges in its place.  The abstract and link follow:

All state and federal courts require the disqualification of a judge when the judge’s “impartiality might reasonably be questioned.” Created by the ABA in 1972, this disqualification standard was intended to help restore public confidence in the judiciary by instilling uniformity and predictability in the recusal process. Unfortunately, the “might reasonably be questioned” test has been an utter failure. It has not decreased the arbitrariness or increased the predictability of recusal decisions. On the contrary, the vague and unworkable standard (1) prevents a disqualification jurisprudence from developing, (2) renders it impossible for ethics advisory committees to provide meaningful advice to judges on recusal issues, and (3) provides a vehicle upon which litigants and non-litigants can shamelessly attack a judge’s impartiality on the basis of the judge’s religion, race, ethnicity, sex, or sexual orientation.

This Article proposes a new disqualification regime for trial court judges. The proposal suggests replacing the “might reasonably be questioned” test with the peremptory removal of a trial judge upon the perfunctory request of a party. After exercising the right to an automatic change of judge, a litigant could challenge the successor judge if the judge is disqualified under a statute or court rule. Finally, the successor judge could be challenged under the Due Process Clause when the circumstances create a serious risk of partiality on the part of the judge. A peremptory challenge system, coupled with a list of disqualifying factors, and the right to challenge a judge’s impartiality on due process grounds, will provide a superior disqualification process.

Raymond J. McKoski, Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard, 56 Ariz. L. Rev. 411 (2014).

Posted in Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

State Judicial Discipline in 2013

Posted by graycynthia on Wednesday, February, 5, 2014

In 2013, as a result of state disciplinary proceedings, five judges (or former judges in two cases) were removed from office.  (Two additional removal decisions were pending on appeal at the end of the year.)  In addition, one judge was suspended without pay until the end of his term, and two former judges were barred from serving in judicial office.  (One of those former judges was also censured; one was suspended from the practice of law for one year.)  Two judges were involuntarily retired due to disabilities.  17 judges resigned or retired in lieu of discipline and agreed not to serve in judicial office again pursuant to public agreements with conduct commissions.

80 additional judges (or former judges in 10 cases) received other public sanctions.  (Approximately half of the sanctions were entered pursuant to the judge’s agreement.)

Eleven judges were suspended without pay for from 30 days to one year.  (Two of the suspensions was stayed entirely or in part; one also included a censure; three included reprimands; one included a reprimand and a $1,000 fine; one included a reprimand and order not to run for re-election.)  One judge was ordered to reimburse the court the pay she had received for almost four months while she was suspended with pay pending criminal charges.

Thirteen judges were publicly censured.  40 judges were publicly reprimanded.  (Three of the reprimands also included fines of $500, $1,000, or $2,500.)  11 judges were publicly admonished.  One judge received a public warning.  Two judges received letters of informal adjustment.  One judge was privately reprimanded, but the reprimand was made public with the judge’s consent.

[To compare 2010 and 2009 figures, click State Judicial Discipline 2010 and State Judicial Discipline 2009.]

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A Twin Victory for Transparency in Federal Judicial Misconduct Proceedings

Posted by judicialethicsforum on Friday, January, 24, 2014

To the credit of the Committee on Judicial Conduct and Disability (of the Judicial Conference of the United States), it just issued two opinions refusing to hide judicial misconduct.  The first involved former Chief Judge Cebull (D. Mont.) who had forwarded hundreds of racist, sexist, homophobic, and political emails from his court email address.  Because of an intervening event (namely, Judge Cebull’s decision to retire), the Ninth Circuit Judicial Council had effectively redacted portions of its earlier order detailing Judge Cebull’s misconduct and imposing several sanctions.  The Committee on Judicial Conduct and Disability concluded that the Council had erred and republished the full order here.

The second instance involved former Sixth Circuit Chief Judge Boyce Martin who had asked the Judicial Council to remove his name from its published order and not to refer him to the Department of Justice for further investigation into his problematic travel reimbursements.  In the face of the judicial misconduct investigation, Martin retired and agreed to pay back $138,500 in reimbursements.  Notwithstanding these steps, the Committee saw no reason to overturn the Judicial Council’s decision to publish Martin’s name and to refer the misconduct to prosecutors; see here.

[Somewhat ironically for a post applauding the federal judiciary's transparency of late, the website on which it posts its decisions has been unavailable several times over the past few days.  The links above are therefore courtesy of other websites.]

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New Scholarship: Richmond on Judicial Plagiarism

Posted by judicialethicsforum on Friday, January, 24, 2014

When a judge unreflectively copies and pastes a colleague’s or party’s work into the judge’s opinion, that conduct can be ethically problematic.  Doug Richmond explores the problem:

Judicial opinions are the core work product of judges; they should be tangible proof to the parties that the court analyzed their claims or defenses and independently reached a reasoned decision. Yet courts often request that parties prepare proposed findings of fact and conclusions of law and thereafter adopt the prevailing party’s findings and conclusions verbatim or nearly so. In other cases, courts copy portions of the winning party’s brief or legal memorandum into their opinions or orders without attribution. These practices are fairly described as “judicial plagiarism.” The limited case law on-point establishes that if a court’s verbatim adoption of a party’s positions or its replication of a party’s brief reflects a lack of independent analysis or reasoning, or an apparent abdication or delegation of the court’s judicial function, it may furnish grounds for reversal. Grounds for reversal should also exist if judicial plagiarism reasonably evidences a court’s alleged bias or partiality. This Article goes farther, however, to argue that judicial plagiarism may constitute judicial misconduct for which the offending judge may be disciplined under the Model Code of Judicial Conduct. Deciding whether judicial plagiarism rises to the level of judicial misconduct or whether it is simply a judge’s ill-considered stab at efficiency is a difficult inquiry. To aid in this important determination, the Article identifies factors that higher courts and judicial conduct authorities should consider in the process. The Article also explains why courts’ and scholars’ long-standing defenses of judicial plagiarism fail.

Douglas R. Richmond, Unoriginal Sin: The Problem of Judicial Plagiarism, 45 Ariz. St. L.J. 1077 (2013).

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Pennsylvania Adopts a New Code of Judicial Conduct

Posted by judicialethicsforum on Friday, January, 24, 2014

As reported in the press (with an interesting account of the state judiciary’s setbacks over the past few years), Pennsylvania has recently adopted a new Code of Judicial Conduct in the image of the 2007 Model Code.  Among other notable features, the new PA Code now prohibits service on corporate, and to a lesser extent non-profit, boards.  The Code also addresses party and attorney judicial campaign contributions, requiring judicial recusal whenever:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

The PA Code of Judicial Conduct can be viewed here.

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

New Scholarship: Richmond on Bench Bullies

Posted by kswisher on Friday, August, 9, 2013

Doug Richmond recently wrote an interesting article (1) summarizing several striking instances of judges bullying lawyers (by, e.g., subjecting the lawyers to public ridicule or mean-spirited jokes) and (2) explaining why that bullying violates the Code of Judicial Conduct and is otherwise improper.

See Douglas R. Richmond, Bullies on the Bench, 72 La. L. Rev. 325 (2012).

Posted in Canon 2, Canon 3 | Leave a Comment »

The Supreme Court Needed an Ethics Code Yesterday

Posted by kswisher on Friday, August, 9, 2013

Brilliant Professors Charlie Geyh and Steve Gillers have just written an op ed on the Supreme Court’s incredible failure to adopt an ethics code.  In it, they mention (among other current topics) the recent introduction of the Supreme Court Ethics Act of 2013, which would attempt to require the Court to adopt an ethics code — any ethics code.  (To be sure, the act would require that the Court adopt the structure of the Code of Conduct for United States Judges, but the Court could deviate from it as “appropriate.”)

To read their brief but important piece, click here.

Posted in Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

National College on Judicial Conduct and Ethics

Posted by kswisher on Thursday, August, 8, 2013

The American Judicature Society will hold its 23rd National College on Judicial Conduct and Ethics in Chicago on October 23-25, 2013. The College will explore ethics and social media, disqualification, the role of public members on judicial conduct commissions, and other interesting topics.  For more information, click here.

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Editorial: Judicial Campaign Money, Disqualification, and the Status Quo Bias

Posted by judicialethicsforum on Sunday, August, 4, 2013

Before the ABA’s House of Delegates in a few days will be Resolution 108, which proposes to amend the Model Code of Judicial Conduct to address judicial campaign contributions and independent expenditures.  When elective judges receive campaign contributions or benefit (or suffer) from independent expenditures, those judges must consider various factors to determine whether to recuse themselves from cases involving those spenders.  Resolution 108, which is supported by the ABA’s Standing Committees on Ethics and Professional Discipline and the Association of Professional Responsibility Lawyers (among others), competently and fairly comprehensively addresses these considerations.

To be sure, 108 is not perfect.  For example, it arguably concedes too much to commentators by inserting two, money-in-politics concessions in the official comments: (1) “no inference about a judge’s actual knowledge should be drawn solely from the fact that reports of campaign contributions or independent expenditures have been filed by individuals or organizations as required by law and may be available as public records or in the public domain” [yet, as the Model and most state Codes acknowledge, actual knowledge can be inferred from the circumstances]; and (2) “The fact that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a contribution to a judge’s election or retention election campaign in an amount up to the limit allowed by law should not, of itself, be a basis for the judge’s disqualification” [which of course does nothing to address high-contribution-limit jurisdictions, among other issues].  Resolution 108 is not perfect primarily because the ABA’s Judicial Division has, to editorialize, insisted that watered-down provisions prevail.  And even when such watered-down-but-still-better-than-the-status-quo provisions prevailed in 108′s final version, the Judicial Division not only refused to sign onto 108 but issued a call to resist change and drafted its competing Resolution 10-B.  10-B simply asks states to review their own disqualification procedures individually.

10-B seems simply a roadblock to change, and to see it, note that Resolution 107 (which did essentially everything that 10-B purports to do) was passed in 2011, Caperton was decided in 2009, the ABA Judicial Disqualification Project began in 2007, and judicial campaign spending has increased significantly throughout this period (and will likely continue to increase in the future).  In light of all of that time and all of those developments (to name just a few), the Judicial Division could create nothing better than a request that each individual state review its disqualification procedures?  Or perhaps the Judicial Division no longer supports the concept of Model Codes?

In sum, Vote for 108 — except that you cannot.  Owing to the resistance from the Judicial Division, the Committees on Ethics and Professional Discipline just agreed to withdraw Resolution 108 (contingent on the withdrawal of 10-B).  Thank you to the Committees for your efforts to date, but money and power are not easily defeated.  “I am not concerned that you have fallen; I am concerned that you arise.” — Lincoln.

Posted in Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

Scholarship: Green and Roiphe on Judicial Independence

Posted by judicialethicsforum on Sunday, August, 4, 2013

The abstract follows:

In this paper, Roiphe & Green argue that the myth of the detached, rational judge, free from emotion runs the risk of undermining the quality of judging, obscuring the transparency of judicial decisions, and deterring the development of diverse judicial styles. The authors explore the history of the myth of the detached judge and how it made its way into rules of judicial conduct. By contextualizing this image of the judiciary, the article concludes that the rules of judicial conduct have come to embody an antiquated understanding of judicial independence and ought to be revised to reflect a more modern concept of the role of judges the American democratic system.

Bruce A. Green & Rebecca Roiphe, Regulating Discourtesy on the Bench: A Study in the Evolution of Judicial Independence, 64 Ann. Surv. Am. L. 497 (2009).

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Scholarship: The Ethics of Judicial Opinion Writing

Posted by judicialethicsforum on Sunday, August, 4, 2013

The abstract puts it concisely: “This article discusses how judges can write honest judicial opinions.”

See Gerald Lebovits et al., Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008).

Posted in Canon 2, Canon 3, Judicial Ethics Generally | Leave a Comment »

Adjudicatory Theory

Posted by judicialethicsforum on Sunday, August, 4, 2013

For those interested in theoretical inquiries of adjudication, three interesting works follow:

(1) Larry Solum on a virtue-centered theory of judging.  This work happens to be the most-downloaded-ever article relating to judicial ethics on the Social Science Research Network:

“Virtue jurisprudence” is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue-centered theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgment. A virtue-centered account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analyzing the virtue of justice into constituent elements. These include judicial impartiality (even-handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue-centered theory accounts for the role that virtuous practical judgment plays in the application of rules to particular fact situations. Moreover, it contends that a virtue-centered theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue-centered approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations.

(2) Brad Wendel on Jurisprudence and Judicial Ethics:

The fundamental value in judicial ethics is impartiality. This means that a judge is duty-bound to decide cases on their merits, be open to persuasion, and not influenced by improper considerations. The paradigm case of unethical behavior by a judge is taking a bribe to decide a case in favor of one of the parties. This kind of corruption, which is fortunately rare in many developed countries, is also relatively uninteresting from an intellectual point of view. A more difficult case of failure of impartiality, conceptually speaking, involves a judge who relies on extra-legal factors as the basis for a judicial decision. Making sense of judicial ethics therefore requires a distinction between factors a judge may take into account when rendering a decision, and those which are excluded from consideration. In American legal discourse, this distinction is often stated in terms of law vs. politics, where politics is used to mean any normative view that is not incorporated into the law. In contrast with legal decisions made by actors within the executive branch of government, in which policy and ideological factors may play a role, judicial decisions are supposed to be justified solely on the basis of legal reasons. . . .

More specifically, the paper will discuss two aspects of the law-politics distinction. First, principles of judicial impartiality must take a position on the existence of judicial discretion and the problem of legal interpretation. The second area of discussion is the justification for certain restrictions imposed on judges by positive law (rules of judicial conduct, statutes, and court rules) often misleadingly referred to as rules of judicial ethics. At least in the United States, many of these restrictions purport to regulate bias and the risk that judges will not be impartial. Courts applying the rules governing judicial conduct often regulate prophylactically, by disqualifying judges from presiding over certain types of cases, based on conduct that is taken to be evidence of bias. However, the discussion of the Hart/Dworkin debate shows that the political viewpoints of judges may necessarily influence the outcomes of cases. In Dworkin’s view, judging is inherently a political practice, because ascertaining the content of law is impossible without resort to normative political argument. In Hart’s view, by contrast, it is possible to ascertain the content of law empirically, but there may be a further normative question about the best way to prioritize or balance competing legal considerations.

I believe the right approach to judicial ethics is to focus on the application side of the distinction between the content of law (which may or may not be susceptible of determination on the basis of social facts) and standards for its application. Where there are multiple plausible interpretations of existing cases, statutes, and other applicable legal norms, all we can reasonably expect is that a judge deliberate in good faith and reach the conclusion she believes represents the best reading of the governing law. The subject of judicial ethics is essentially an attempt to flesh out the idea of judging in good faith. That, I suggest, is fundamentally about being prepared to give reasons in justification of a judicial decision.

(3) And Brennan-Marquez on Judging Pain:

Adjudication often stems from painful origins. Yet the process of interpreting pain has inspired virtually no commentary. By omitting pain-regard from their accounts of the “right-remedy gap”, scholars have been unable to account for cases that, (1) originate from an acute instance of suffering, and (2) involve a tension between competing legal principles, one militating in favor of redress, the other in favor of dismissal. The Article examines three such cases in detail: Snyder versus Phelps, Brown versus Plata, and Connick versus Thompson.

The cases are experientially upsetting. They force the Court to contend with the limitations of its remedial capacity at the very moment when redress seems, because of the severity of pain, most urgent. The Article profiles the way different Justices respond to this condition and, from there, develops an account of judicial pain-regard. It concludes by arguing that in our legal order, defined as it is by irreconcilable but independently virtuous commitments, pain-regard is not only wise; it is necessary.

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New Survey Addressing Procedural Justice and Judicial Performance Evaluation

Posted by judicialethicsforum on Sunday, August, 4, 2013

Here is the abstract:

This paper presents a questionnaire that is a work in progress. The questionnaire is designed primarily to assess lawyers’ perceptions of the procedural justice offered by judicialsettlement sessions in individual civil, non-family cases. The questionnaire may be used by: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and larger empirical research projects. To explain the need for the questionnaire, the paper provides a brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation. Because the logic of the questionnaire is grounded in procedural justice, the paper also examines the procedural elements that most reliably lead to perceptions of procedural fairness: the opportunity for voice; respectful treatment from the decision-maker; even-handed treatment by the decision-maker and neutrality of the forum; and trustworthy consideration from the decision-maker.

The questionnaire is designed to expand upon the current state of knowledge regarding the procedural justice provided by judicial settlement by asking questions designed to identify: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers’ (and clients’) perceptions of procedural and substantive justice; and 3) the influence of certain contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether thejudicial action occurred in joint session or caucus, and whether the parties suggested or requested the settlement session). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will also include questionnaires for clients and judges.

Nancy Welsh et al., The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions.

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Comparative Judicial Ethics

Posted by judicialethicsforum on Sunday, May, 19, 2013

To compare several similarities and differences between state or federal judicial ethics and three diverse venues (namely, Canada, Japan, and North Carolina), see below:

(1) Canada: Judicial Disqualification Under the “Reasonable Apprehension of Bias” Test

The “reasonable apprehension of bias” test for judicial disqualification has been a fixture of Canadian law for many years, despite a considerable amount of litigation concerning judicial impartiality. The test itself has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, our goal in the present paper is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. We begin considering the advantages of and suggest that in order to be useful, any refinement to the test must to the greatest extent possible preserve those advantages. In the second part of the paper we consider why inconsistent application of the test in marginal cases is a concern. This is followed by a more detailed consideration of the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. The fourth part of the paper proposes a modification to the “reasonable apprehension of bias” test that is designed to address these shortcomings while preserving the key advantages of the existing test.

Jula Hughes & Philip Bryden, Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification, 36 Dalhousie L.J. (forthcoming 2013) (including references to an interesting survey of Canadian judges’ recusal preferences and practices).

(2) Japan: Judicial Disqualification and Meanings of Fairness and Due Process

This article considers how Japanese judges have articulated the meaning of fairness in judicial decisions. The provisions in Japan’s Code of Civil Procedure, which provide for disqualification of judges and for direct party challenges to judges’ involvement in cases, explicitly require judges to weigh the fairness of the justice process in the particular circumstances of the cases before them. These cases provide a unique window for understanding the meaning of fairness, or what U.S. scholars might call due process, in Japanese jurisprudence.

In fact, the meaning of fairness has earned little explanation from Japan’s judges in their formal jurisprudential voice. Research uncovered only ten published case decisions under the current Constitution and Code of Civil Procedure that address the standards here. In all but one, the results were denials of the petitions and refusals to remove the judge. Early decisions, in particular, demonstrated a narrow acknowledgement of the potential for bias and were resolved via a formalistic reasoning that paid little regard for public perceptions.

While the record of judicial disqualification and challenge cases shows a history of harsh determinations in the early post-war years in Japan, more recent decisions emerging in the context of the massive changes to Japan’s justice system since 2001 suggest that judicial system reform has had a modest, but positive impact with regards to the quality of procedural justice available to civil litigants in Japan. In particular, an April 2011 decision by the Japanese Supreme Court’s Second Petty Bench, which clearly acknowledges a requirement of due process in civil procedure, offers optimism for further improvement in years ahead.

Mark Levin, Circumstances that Would Prejudice Impartiality: The Meaning of Fairness in Japanese Jurisprudence, Hastings International & Comparative L. Rev. (forthcoming 2013).

(3) North Carolina: The Appearance of Impropriety

The ABA Model Code of Judicial Conduct and the judicial codes of conduct in nearly every jurisdiction admonish judges to avoid the appearance of impropriety. The North Carolina Code of Judicial Conduct likewise contained a similar prohibition until 2003, when the North Carolina Supreme Court removed the language and made related amendments to the Code. Although North Carolina is clearly an outlier in this regard, two questions remain: first, whether North Carolina judges are still required to consider appearances in performing their duties; and second, whether judicial codes of conduct should proscribe such a standard at all.

To answer this latter question, this Article draws upon the social psychology theories of cognitive bias and procedural justice. These two theories work together to impact how judges arrive at decisions and how litigants will perceive and respond to those decisions. Both theories militate in favor of including a robust appearance standard in a judicial code of conduct. Moreover, the changes to the North Carolina Code in 2003 simultaneously exacerbated the negative effects of cognitive bias and decreased litigants’ perceptions of procedural justice in state courts.

But reinstating the appearance of impropriety language to the North Carolina Code alone will not fully ensure judicial propriety, or even the appearance of propriety. Thus, this Article illustrates how an understanding of cognitive bias and procedural justice can inform the introduction of other reforms, using the issue of judicial involvement in plea bargaining and sentencing as an example of how these theories may be applied.

Jon P. McClanahan, Restoring the Appearance of Propriety to the Judiciary, N.C. L. Rev. (forthcoming 2013).

Posted in Canon 1, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

Sample on Supreme Court Recusal

Posted by judicialethicsforum on Sunday, May, 19, 2013

Outstanding Professor James Sample has published an interesting review of Supreme Court recusal practice (or lack thereof).  Portions of the abstract and a link to Professor Sample’s full work follow:

For Justices of the U.S. Supreme Court, controversies pitting personal conflicts — whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison. . . .

The study yields a layered picture that is rich in historical imagery, anecdote, and analytically-critical context. In this respect, the Article includes, but is not limited to, treatments of the midnight Justices in Marbury; the Steel Seizure case and the “damned fool” whom Truman felt was the “biggest mistake he had made” as President; Thurgood Marshall’s long arc with the NAACP; perhaps the best-known duck-hunting trip of all time; Justice O’Connor’s election night outburst preceding Bush v. Gore; profound matters of issue identification involving Justices Ginsburg and Breyer; and finally the controversies surrounding the Patient Protection and Affordable Care Act, including the undisclosed income related to Virginia Thomas’s work opposing the health care legislation and Justice Kagan’s ill-advised e-mails including the memorable “I hear they have the votes, Larry!!”

The exploration serves as a navigational guide to the difficult but necessary task of separating the shrill cries from the serious constitutional concern of genuine Supreme Court conflict. The Article situates the analysis of Supreme Court disqualification practice, and particularly the circumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes to disqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct. . . .

James Sample, Supreme Court Recusal from Marbury to the Modern Day, 26 Geo. J. Legal Ethics 95 (2013).

Posted in Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

Judges’ Social Media Use

Posted by judicialethicsforum on Sunday, May, 19, 2013

The American Judicature Society has published a short-but-helpful list of “do’s and don’t’s” for judges considering or using social media.  AJS concludes:

Social media use is fraught with peril for all users, but more so for judges as it complicates both their personal lives and judicial roles. A judge cannot be a casual user of social media and must be willing to take whatever steps are necessary to comply with the code of judicial conduct. Each judge will have to decide for himself or herself if the benefits of online social media outweigh the inevitable risks and constant vigilance.

Click here for the full editorial.

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The Third ABA Judicial Ethics Opinion in Three Decades

Posted by judicialethicsforum on Thursday, February, 21, 2013

The ABA Standing Committee on Ethics and Professional Responsibility has just issued a new formal opinion on a timely judicial ethics topic.  The Ethics Committee has not addressed judicial ethics in its formal opinions for over four years (indeed, in the last thirty years, it has done so only three times; for the previous opinions, see here).  The next question almost automatically becomes — to what issue does the Model Code owe this attention?

Answer: Judges and Social Media.  For example, you may recall the controversial Florida judicial ethics opinion stating that judges cannot “friend” (on Facebook) lawyers who may appear before them; you may have seen elective judges (and their campaign committees) using social media to promote themselves; or you may have seen or heard about judges publicly endorsing candidates for public office through social media.  The brand new opinion speaks to all three of these examples (and a few others).  In light of the many judicial ethics considerations when judges communicate publicly (whether through social media or older methods), however, the opinion understandably offers very few bright-line rules.  The opinion does, however, generally take a pro-social media tone:

Judicious use of ESM can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.

For the full opinion, click here.

Posted in Canon 2, Canon 4, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

New Scholarship: White on Judicial Disqualification in Perspective

Posted by judicialethicsforum on Thursday, February, 21, 2013

Professor and former Tennessee Supreme Court Justice Penny White has published an interesting new essay on judicial disqualification, in which she asserts “that robust disqualification provisions can serve as a powerful antidote to the harmful effects of [the White and Citizens United] decisions, particularly when judges view disqualification requests from the public’s perspective.”  For the full essay, click the link below:

Penny J. White, A New Perspective on Judicial Disqualification: An Antidote to the Effects of the Decisions in White and Citizens United, 46 Ind. L. Rev. 103 (2013).

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

 
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