The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for May, 2012

Judicial Selection Updates

Posted by judicialethicsforum on Friday, May, 11, 2012

The great Malia Reddick, now the Director of the Quality Judges Initiative at the IAALS at Denver University, pulls together an interesting running collection of judicial selection news across the states.   Topics include merit selection bills, retention election battles, campaign spending, and many more. 

For the collection, click here.  To sign up for email updates, click here (and choose Selection Snapshots Newsletter). 

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Leib et al. on Judges as Fiduciaries

Posted by judicialethicsforum on Friday, May, 11, 2012

Here is a very interesting new piece on judicial theory from Leib (Fordham) and coauthors.  The abstract follows:

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). 

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Swisher on Recusal and the Supreme Court’s Carrigan Decision

Posted by judicialethicsforum on Friday, May, 11, 2012

Prof. Swisher (Phoenix) has posted this essay about Carrigan, recusal, and related constitutional theory.  Here is the abstract:

Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. The Supreme Court all but banned First Amendment analysis as applied to recusal laws, both legislative and judicial. That, actually, is the good thing, or so I argue. The bad thing is that the Court, in doing so, used a geriatric approach to constitutional theory. The approach is unduly reverent of anything “old;” and old is not limited to the practices of the Founding Fathers, but also includes “traditional” practices within some undefined range. But what is old is not necessarily wise, and a theory to the contrary leads to degenerative results in general and in ethics in particular, or so I argue further. I conclude with a return to the positive, hoping that the Court’s path may have inadvertently sparked a viable conceptual foundation for judicial recusal law and practice, which of course, have received much general press and scholarly attention of late.

For the full essay, click here; Keith Swisher, Recusal, Government Ethics, and Superannuated Constitutional Theory, 72 Md. L. Rev. (forthcoming Dec. 2012). 

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

Geyh on Judicial Impartiality

Posted by judicialethicsforum on Friday, May, 11, 2012

The judicial ethics force known as Prof. Geyh (Indiana-Bloomington) has posted this interesting research on the differing uses of judicial impartiality.  Here is the abstract:

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality — the complete absence of bias or prejudice — is at most an ideal, with “impartial enough” becoming, of necessity, the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: A procedural dimension in which impartiality affords parties a fair hearing; a political dimension in which impartiality promotes public confidence in the courts; and an ethical dimension in which impartiality is a standard of good conduct core to a judge’s self-definition. The seeming contradictions that cut across contexts in which judicial impartiality problems arise, can for the most part be explained with reference to the dimensions those problems inhabit and the constraints under which regulation in those dimensions are subject. Thus, being impartial enough to assure parties a fair hearing in the procedural dimension may or may not be impartial enough to satisfy the public in the political dimension, which may or may not be impartial enough to ensure that judges are behaving honorably in the ethical dimension. Analyzing partiality problems through the lens of the dimensions they occupy not only resolves many of the imponderables that have long plagued the subject, but also reveals a distinct trend, in which impartiality is being transformed from a value traditionally regulated largely by judges and the legal establishment in the procedural and ethical dimensions, to one that is increasingly the province of the political dimension, where it is regulated by the public and its elected representatives. By situating impartiality at the crossroads of judicial procedure, ethics and politics, this article offers a new perspective, not just on judicial impartiality, but also on the role of the American judiciary in the administration of justice and the political process.

For the full article, click here.

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