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.

The American Judicature Society has published a short-but-helpful list of “do’s and don’t’s” for judges considering or using social media.  AJS concludes:

Social media use is fraught with peril for all users, but more so for judges as it complicates both their personal lives and judicial roles. A judge cannot be a casual user of social media and must be willing to take whatever steps are necessary to comply with the code of judicial conduct. Each judge will have to decide for himself or herself if the benefits of online social media outweigh the inevitable risks and constant vigilance.

Click here for the full editorial.

Prof. Michele Benedetto Neitz (Golden Gate) has posted this insightful essay on judges’ implicit socioeconomic bias.  One of the essay’s motivators was Chief Judge Kozinski’s recent dissent from a denial of rehearing, in which he in effect accused the panel of socioeconomic bias.   See United States v. Pineda-Moreno (implying that the panel drove BMWs and engaged in “unselfconscious cultural elitism”).  Prof. Benedetto Neitz’s work can be viewed here, and the abstract follows:

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).

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). 

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.

Emily M. Janoski-Haehlen recently posted a draft of The Courts Are All a‘Twitter’: The Implications of Social Media Use in the Courts.  Her draft can be found here, and a general abstract follows:

Tweet, poke, post, friend, like, blog, link, comment, and share: the opportunities to communicate electronically using social media tools seem never ending. Facebook, Twitter, YouTube, MySpace, and LinkedIn are just a few of the social media sites that allow people to communicate and “connect” with others across the world in seconds. E-mail and sending text messages are two other ways to communicate electronically, but neither e-mails nor text messages can keep up with the speed, accessibility, and popularity of social media. Social media is entrenched in our lives as evidenced by the fact that adult profiles on online social media sites are up from only 8% in 2005 to 47% in 2010. The legal profession has also jumped aboard the social media bandwagon with 40% of judges reporting they are on social media sites and 56% of attorneys reported having a presence on social media sites. Whichever “social networking” or communication method is chosen by an individual, the technology has made that communication instantaneous. Unfortunately, social media communication is also dangerous to the integrity of the courts.

Emily M. Janoski-Haehlen, The Courts Are All a‘Twitter’: The Implications of Social Media Use in the Courts, 46 Val. U. L. Rev. (forthcoming 2011).