The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for December 20th, 2010

New Scholarship: Pozen on Judicial Elections and Popular Constitutionalism

Posted by kswisher on Monday, December, 20, 2010

David Pozen has just married the practice of judicial elections to the popular theory of popular constitutionalism.  My first thought: If he is right that judicial elections are really the best “vehicle for achieving popular constitutionalism [by being] genuinely empowering without being anarchic, accessible to the masses yet mediated by professionals, [and] transformative yet realistic,” then I must not be a popular constitutionalist.  But his balanced and insightful analysis convinced me to read on.  Here is the abstract:

One of the most important recent developments in American legal theory is the burgeoning interest in “popular constitutionalism.” One of the most important features of the American legal system is the selection of state judges—judges who resolve thousands of state and federal constitutional questions each year—by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states’ experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.

David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047 (2010), a link to which can also be found in Articles.

Posted in Judicial Campaigns, Judicial Ethics Generally, Judicial Selection | 1 Comment »

Swisher on Attorneys’ Judicial Campaign Contributions

Posted by kswisher on Monday, December, 20, 2010

I have posted a draft of my most recent article on SSRN.  This one is on attorneys who contribute to judges’ election campaigns and then appear before those judges, and the Georgetown Journal of Legal Ethics will publish it in the winter or early spring.  Judicial ethics takes a backseat (still a seat), but there should still be enough of it and judicial selection to interest readers, I presume.  The abstract follows:

Lawyers as johns, and judges as prostitutes?  Across the United States, attorneys (“johns,” as the analogy goes) are giving campaign money to judges (“prostitutes”) and then asking those judges for legal favors in the form of rulings for themselves and their clients.  Despite its pervasiveness, this practice has been rarely mentioned, much less theorized, from the attorneys’ ethical point of view.  With the surge of money into judicial elections (e.g., Citizens United v. FEC), and the Supreme Court’s renewed interest in protecting justice from the corrupting effects of campaign money (e.g., Caperton v. A.T. Massey Coal Co.), these conflicting currents and others will force the practice to grow both in its pervasiveness and in its propensity to debase our commitment to actual justice and the appearance of justice.  This Article takes, in essence, the first comprehensive look at whether attorneys’ campaign contributions influence judicial behavior and our confidence in the justice system (they do), whether contributions have untoward systemic effects (again, they do), and most fundamentally, whether attorneys act ethically when they contribute to judges before whom they appear (they do not, all else being equal).

 The article can be downloaded for free at this link, which can also be found in Articles. 

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