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:

For the full opinion, click here.

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).

How much assistance should a trial judge provide a self-represented litigant [SRL] before the judge’s impartiality will be reasonably questioned? This question has been of continuing concern to both the bench and bar ever since the rise of the pro se litigation movement in the late 1990s, particularly in the context of “mixed” cases involving an SRL and a represented party. Case law and ethics codes provide inconsistent decisions and vague guidelines for judges, who must balance their duty to provide reasonable assistance with their duty to ensure a fair trial for all parties. This paper reports the results of a survey administered to 210 Canadian family law practitioners who were presented with 16 hypothetical scenarios involving an SRL and a represented party. Respondents indicated their views regarding the impartiality and helpfulness of the trial judge in each scenario, involving various procedural defaults by the SRL and different forms of judicial assistance or lack thereof. The results indicate that lawyers’ perceptions of a judge’s impartiality are affected, inter alia, by the favourability of the outcome for the SRL, and whether the assistance provided dealt with procedural or substantive matters. Future research is needed to determine whether a consensus can be established regarding perceptions of lawyers, lay persons, and judges regarding which forms of assistance are reasonable and required, permissible, or impermissible.

Jona Goldschmidt & Loretta Stalans, Lawyers’ Perceptions of the Fairness of Judicial Assistance to Self-Represented Litigants, Windsor Yearbook of Access to Justice, Vol. 30, No. 1, 2012.

The United States Supreme Court is the only court in the United States without a clearly defined ethics code. In the wake of the controversy over possible leaks from justices’ chambers following the decision in NFIB v. Sebelius, and in light of legislation recently introduced in Congress, this paper suggests two reforms for the Supreme Court. First, the time has finally come for the Court to adopt a comprehensive Code of Conduct. Second, the Court should alter its current recusal practice – in which decisions are made exclusively by individual justices – and instead resolve disqualification motions by a vote of the full court.

Steven Lubet & Clare Diegel, Stonewalling, Leaks, and Counter-Leaks: Scotus Ethics in the Wake of NFIB v. Sebelius (Sept. 10, 2012).

That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.

The committees have released their second draft of the proposed rule change, which omits several restrictions proposed in the first draft.  In response, Cindy Gray and the American Judicature Society proposed a stronger and more comprehensive rule in several respects.  That rule can be found on pages 18-19 of this document, which also contains the other commentary on the second draft.  The committees have kindly decided to post another draft for comment before the proposed rule goes to the House of Delegates next year.

UPDATE: The third draft is available here.  Comments are due by February 22, 2013.

Judges hold a prestigious place in our judicial system, and they earn double the income of the  average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges. This elitism can manifest as implicit socioeconomic bias.

Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date  has fully examined the ramifications of implicit socioeconomic bias on the  bench. The article explains that socioeconomic bias may be more obscure than other forms of bias, but its impact on judicial decision-making processes can  create very real harm for disadvantaged populations. The article reviews social  science studies confirming that implicit bias can be prevalent even in people who profess to hold no explicit prejudices. Thus, even those judges who believe their wealthy backgrounds play no role in their judicial deliberations may be influenced by implicit socioeconomic bias. The article verifies the existence of implicit socioeconomic bias on the part of judges through examination of recent  Fourth Amendment and child custody cases. These cases reveal that judges can and do favor wealthy litigants over those living in poverty, with significant negative consequences for low-income people.

The article contends that the ABA Model Code of Judicial Conduct (the “Code”), the document designed to regulate the behavior of judges, fails to effectively eliminate implicit socioeconomic bias. The article recommends innovative revisions designed to strengthen the Code’s prohibition against bias, and suggests improvements to judicial training materials in this context. These changes will serve to increase judicial awareness of the potential for implicit socioeconomic bias in their judicial decisions, and will bring this issue to the forefront of the judicial agenda.

Michele Benedetto Neitz, Socioeconomic Bias in the Judiciary, Cleveland St. L. Rev. (forthcoming 2013).

Additionally, some recent press about the film and the case can be viewed here.

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For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial responsiveness — the obligation that, as a branch of government in a democratic polity, judges must ensure that the law not derogate too far from the will of the people? This paper reveals how the law governing fiduciary relationships sheds new light on this age-old quandary, and therefore, on the very nature of the judicial office itself. In so doing, the paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insight into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial and hotly contested legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.

For the full article, click here; Leib et al., A Fiduciary Theory of Judging, 101 Cal. L. Rev. (forthcoming 2013).