The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for August 4th, 2013

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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New Survey Addressing Procedural Justice and Judicial Performance Evaluation

Posted by judicialethicsforum on Sunday, August, 4, 2013

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.

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