The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

The Supreme Court Has Again Agreed to Do Something Very Good or Very Bad to State Judicial Ethics

Posted by judicialethicsforum on Sunday, October, 5, 2014

The Supreme Court has agreed to hear another case on the Code of Judicial Conduct.  It has not explicitly done so since Republican Party of Minnesota v. White (and we all know how that one turned out; cf. also the Caperton and Carrigan opinions).  Judicial candidate Lanell Williams-Yulee signed a mass-mailing in which she solicited contributions to her campaign.  Not surprisingly for those who have read the judicial ethics code in effect in a majority of states, this conduct violated the prohibition against personally soliciting campaign contributions.  “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds. . . .”  Fla. Code of Judicial Conduct Canon 7C; see also 2007 Model Code R. 4.1; 1990 Model Code Canon 5C.  As the 2007 Model Code (but not the Florida Code) helpfully defines, moreover, “’Personally solicit’ means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication.”  The Florida Supreme Court thus publicly reprimanded Williams-Yulee for violating the Canon, notwithstanding her complaint that the Canon violates the First Amendment “in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.”  The circuits have split on the First Amendment issue, and Williams-Yulee sought cert on that basis.  (Of note, her petition relies in part on the Ninth Circuit’s recent split decision invalidating the personal solicitation canon as applied to non-judges, but the Ninth Circuit has since agreed to rehear the appeal en banc this December. See Wolfson v. Concannon en banc petition and panel opinion.)  In part because Williams-Yulee’s adversary (the Florida Bar) made the controversial decision to urge the Supreme Court to hear Williams-Yulee’s petition, the Supreme Court has agreed to do so.

Of potential interest, the cert petition, in Appendix D, includes a copy of Williams-Yulee’s solicitation letter.  In it, Williams-Yulee tells an unknown number of local lawyers, litigants, and others that:

I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. . . . Thank you in advance for your support.

As an editorial comment, let’s hope that at least five justices recognize the significantly coercive and corrupting effects of personal solicitation (both in reality and in appearance and both as to the judge and the contributor), particularly combined with the fact that the judges or prospective judges would be directly soliciting money from the same lawyers and parties who appear or will appear before them.

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Ethics Generally | Leave a Comment »

A Huge Loss for Fair Courts

Posted by judicialethicsforum on Sunday, October, 5, 2014

After 100-plus years, the American Judicature Society sadly will be closing its doors.  As the AJS President said in a press release:

A fair and impartial justice system is the foundation of American liberty. The American Judicature Society has fought to improve and preserve the fairness, impartiality, and effectiveness of our justice system for 101 years as a member-based entity. However, in the last several years, the membership model has become more challenging for many nonprofit organizations around the country, including AJS. At the same time, new nonprofit entities with organizational and financial structures more suited to the times have joined AJS in the fight. The American Judicature Society’s Board of Directors decided that rather than operate on a limited scale, and rather than duplicate the excellent work of other similar entities, AJS should find new homes for its core functions. To this end, AJS and the National Center for State Courts (NCSC) have entered into a Memorandum of Understanding that transfers AJS’s Center for Judicial Ethics (the CJE) to NCSC and ensures that the CJE will continue its very important work. AJS is also in the process of finding new homes for Judicature and AJS’s internet accessible resource known as Judicial Selection in the States.

Even after the American Judicature Society closes its doors, its legacy will live on as long as Americans recognize and support a fair and impartial justice system as essential to our freedom.

See also the National Center for State Court’s Press Release (noting the fortunate fact that AJS’s Center for Judicial Ethics will live on at the NCSC).

Posted in Judicial Ethics Generally, Judicial Selection | Leave a Comment »

New Scholarship: Kalhan on Judge Scheindlin’s Outster

Posted by judicialethicsforum on Sunday, October, 5, 2014

Many presumably will be familiar with the Second Circuit’s reassignment of the New York “stop and frisk” controversy from Judge Scheindlin to another district court judge.  See, e.g., Ligon v. City of New York, 736 F.3d 166, 171 (2d Cir. 2013) (“A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.”).  Now, Prof. Kalhan (Drexel) has written a lengthy criticism about the Second Circuit panel’s process, orders, and opinions:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

Anil Kalhan, Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances, 27 Geo. J. Legal Ethics (forthcoming 2014).

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New ABA Resolution Addressing Judicial Disqualification and Campaign Contributions

Posted by judicialethicsforum on Tuesday, August, 12, 2014

In a time when money is flowing into judicial elections, the ABA has finally passed a resolution designed generally to address the often problematic results and appearances when lawyers and litigants contribute or otherwise expend significant sums of money to elect or retain a judge.  The ABA’s Judicial Division had defeated an earlier, more detailed resolution to address when judges should recuse themselves because the lawyers or litigants appearing before them had made significant campaign contributions or independent expenditures for (or against) those judges.  Although diluted, the new ABA Resolution 105C is still a step in the right direction because it addresses four key areas of improvement and urges training to address these often difficult disqualification questions:

RESOLVED, That the American Bar Association urges that states and territories adopt judicial disqualification and recusal procedures which: (1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge; and

RESOLVED FURTHER, That the American Bar Association urges all states and territories to provide guidance and training to judges in deciding disqualification/recusal motions.

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

Judges Friending Lawyers

Posted by judicialethicsforum on Tuesday, August, 12, 2014

The latest issue of The Professional Lawyer was just published, and Prof. Ben Cooper (Mississippi) included a good article on how to deal with the divisive issue of whether judges should be permitted to “friend” lawyers and litigants on Facebook, and if so, what disclosure obligations result.  Prof. Cooper’s article can be found here, and the abstract follows:

A wave of recent judicial ethics opinions from the states and the ABA offers direction on navigating the ethical minefield of social media use by judges. The author, an ethics professor, surveys opinions on point and argues that although they provide helpful guidance on a number of issues, they fall short in terms of providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media “friend.”

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

Judicial Disqualification Standards in Canada

Posted by judicialethicsforum on Tuesday, August, 12, 2014

Profs. Philip Bryden (Alberta) and Jula Hughes (New Brunswick) just revised their lengthy work on judicial recusal standards in Canada.  Click here to download the full paper, and here is a partial abstract:

Beginning with a review of a number of leading Canadian and other common law decisions on judicial disqualification, we explore the implications of the divergent strands of thinking that emerge in the jurisprudence to improve our understanding of the Canadian jurisprudence and then move to a discussion of the substantive rules governing judicial disqualification in six categories of cases. We argue that the conceptual tools we use in addressing issues of judicial impartiality tend to fail us precisely in the analytically marginal cases where, based on the jurisprudence or policy, plausible arguments could be advanced for suggesting both that a judge should or should not be disqualified. This uncertainty puts pressure on judges to recuse themselves in marginal situations in which it would be better from the standpoint of the efficient administration of justice for them to sit.

Posted in Judicial Disqualification & Recusal | Leave a Comment »

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.”

UPDATE: The Arizona opinion was slightly revised shortly after this post.  The revised opinion can be found here.  Many of the revisions are minor; probably the largest addition follows:

As to friending or liking the websites of political candidates, judicial employees other than a judge’s personal staff, courtroom clerks, and court managers may do so subject to the restrictions set forth in Rule 4.1. A judicial employee should not identify him or herself as a judicial employee in so doing and should avoid conduct that may give the impression the employee’s political activities are on behalf of the judiciary. Members of judges’ personal staff, courtroom clerks, and court managers are subject to the same political limitations as judges contained in Canon 4 of the Code of Judicial Conduct, except as provided in Rule 4.3 (Elective Judicial Department Office).

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).

Posted in Judicial Ethics Generally | Leave a Comment »

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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