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.

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).

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.

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.