Earlier this week the U.S. Supreme Court handed down its opinion in Clapton v. Massey. The decision was 5 - 4, with Justice Kennedy writing the majority opinion, and Chief Justice Roberts, a dissent. Here is the front matter from the opinion published on the U.S. Supreme Court's website:
After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.
Held: In all the circumstances of this case, due process requires recusal. Pp. 6–20.
(a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has “a direct, personal, substantial, pecuniary interest” in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter, require recusal where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,” Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context. Pp. 6–11.
(1) The first involved local tribunals in which a judge had a financial interest in a case’s outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village’s general treasury fund for village improvements and repairs. Disqualification was required under the principle that “[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” 273 U. S., at 532. In Ward v. Monroe-ville, 409 U. S. 57, a conviction in another mayor’s court was invalidated even though the fines assessed went only to the town’s general fisc, because the mayor faced a “ ‘ possible temptation’ ” created by his“ executive responsibilities for village finances.” Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama’s lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not “whether in fact [the justice] was influenced,” id., at 825, but “whether sitting on [that] case . . . ‘ “would of-fer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true,” ’ ” ibid. While the “degree or kind of interest . . . sufficient to disqualify a judge . . . ‘[could not] be defined with precision, ’ ” id., at 822, the test did have an objective component. Pp. 7–9.
(2) The second instance emerged in the criminal contempt con-text, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that “no man can be a judge in his own case,” and “no man is permitted to try cases where he has an interest in the outcome,” id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge’s prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating that the rule that “a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor,” Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likely to be neutral or there is an unconstitutional “ ‘potential for bias,’ ” id., at 466. Pp. 9–11.
(b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbid-den if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—compared to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be for-bidden if the guarantee of due process is to be adequately implemented.” Ibid. The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ con-sent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal. Pp. 11–16.
(c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare. Pp. 16–20.
___ W. Va. ___, ___S. E. 2d ___, reversed and remanded.
My strong sense is that the majority got this right. I find the fact that there are 39 states with contested and privately funded judicial elections to be an abomination. I strongly resist the view that being a judge is simply politics by another means, and my opposition to privately funded judicial elections is that they foster that view. Judges are and ought to be different. I'm not going to press this too far. Rather, let me try to be constructive. Let me divide up my brief comments into two separate issues. The first has to do with the impact of the decision on matters already decided. The second involves a simple suggestion regarding what to do going forward.
The principal points of the dissenters is that this is undue federal influence in state matters and that it will open up the floodgates of reconsideration of lots of decided matters. I have no particular expertise on the federalism question here, but it strikes me that a state that allows the sort of practice that characterized the West Virginia dispute is a state that comes close to deciding matters of law by auction, which cannot be good. With regard to the matter of reconsiderations, I suppose that that is a problem that demands an administrative solution. I don't think that the Supreme Court could have said, "This practice was OK up to June 8, 2009, but hereafter it should not be allowed." So, if the states have allowed this to go on, or if judges and justices have not had the modicum of good sense to recuse themselves at the slightest hint of impropriety, then the states will simply have to live with dealing with the costs of reconsiderations.
As to what to do going forward, if states do not wish to scrap judicial elections or to outlaw private funding of those elections or if they are worried that judges might not recuse themselves when they ought to, then they simply must adopt the Ayres, Bulow, and Ackerman proposal for a secret donation booth. See the original Ayres & Bulow paper, here, or Ackerman & Ayres, Voting with Dollars (2004).
I apologize for the large gap in postings. This has been a particularly taxing semester. But the worst is behind me, and the best is ahead.
Here are a few things to check out as I ease back into blogging about law and economics:
1. I've been rereading two marvelous articles by Charles E. Lindblom, "The Science of 'Muddling Through,'" 19 Pub. Admin. Rev. 79 (1959) and Lindblom, "Still Muddling, Not Yet Through," 39 Pub. Admin. Rev.517 (1979).
2. Buccafusco, Bronsteen, & Masur, "Welfare and Happiness," available at www.ssrn.com.
4. Henderson, Wolfers, & Zitzewitz, "Predicting Crime," available at www.ssrn.com.
5. Garcia & Tor, "The N Effect: More Competitors, Less Competition," available at www.ssrn.com. Avishalom Tor presented this paper at the recent ALEA Annual Conference at the University of San Diego.
James Q. Wilson, whose work I admire immensely and who is one of the most careful scholars of crime and criminal justice policy, has a marvelous column today at AEI summarizing what we know and do not know about the effects of incarceration (or punishment, generally) on crime levels. The article is available here.
I'm sitting outside the Weaver Street Market in Carboro, North Carolina (just outside Chapel Hill), on a delightful Spring morning. I've visiting my dear friend Mitu Gulati, who is off at a spinning class while I drink coffee and catch up on some work. We are going to meet another dear friend, Richard McAdams, in a while to eat Allen & Sons barbecue and go to the UNC-Duke basketball game this afternoon. Barbecue, law and economics with two of the best practitioners of the genre, delightful weather, and UNC-Duke basketball -- this is as good as it gets.
I highly recommend an article about Zip Cars in this morning's New York Times Sunday Magazine: Mark Levines, "Share My Ride" -- available here. The story of the growth of the company (including the painful dismissal of one of its founders) is fascinating, as is the idea of substituting shared for wholly owned automobiles. The University of Illinois has recently joined the Zipcar network. I'm not certain how many of their cars are available on our 40,000-student campus in Urbana-Champaign, but the attraction to the company of having that many people away from home and, possibly, cut off from the use of the family car must make the campus an attractive business proposition. I'm eager to find out more about the availability on our campus.
You can access the Zipcar website at www.zipcar.com, where there is a link to the New York Times article mentioned above.
For years I have used a discussion of the droit de suite (the artist's right to share in the proceeds of sales of his or her work beyond the first sale) to teach my law students about transaction costs, social subsidies to creative and expressive activities, and more. The State of California since 1977 has had such a practice (requiring subsequent sales of an artist's work to remit 5 percent of the sale price to the artist if the sale is over $1,000 and not between art dealers). There is a wonderful story -- available here -- in today's Wall Street Journal about a California state official whose job it is to track down artists who are entitled to payment. TSU
This article, available at SSRN, by William Ferguson of the Department of Economics at Grinnell College, is a wonderful, brief introduction to recent developments in economic theory. I think that those in the legal academy who are not in regular contact with economics will find this very helpful. TSU
Adam Liptak's column in The New York Times for tomorrow -- available here -- contends that there are credible studies showing that paying judges more, as urged annually by the Chief Justice of the United States in his report on the federal judiciary, does not result in better judging. TSU
Bruce P. Smith, a noted legal historian and award-winning University of Illinois law professor, has been named Dean
of the College of Law,
pending approval by U. of I.
trustees at their Jan. 15 meeting in Chicago. Dean Smith, who joined the law faculty in 2001 and has
served as associate dean for academic affairs since April, would become the college’s
12th dean and Guy Raymond Jones Faculty Scholar, effective Feb. 16. He would replace Heidi Hurd, who was dean from 2002 to 2007,
when she stepped down to join the faculty of the more than century-old college.
“Bruce is a scholar of considerable vision and energy with
high ambitions for the college,” said Richard Herman, chancellor of the Urbana campus. “He is just the right person to be leading our fine College of Law.”
Dean Smith, 44, says his years on the U.of I. faculty will yield a smooth
transition to heading the college, ranked 27th in the latest U.S. News ratings
of the nation’s top 100 law schools.
“The College of Law
has tremendous strengths: a world-class
faculty, top-notch students, talented administrators and staff, and highly
accomplished alumni,” Smith said. “It is
a privilege to have the opportunity to lead such a remarkable institution and
to advance the mission of this great public research university. I look forward to building on the significant
legacy of my predecessors, helping the college achieve our ambitious goals, and
visiting with many of our alumni in the coming months.”
Dean Smith, whose research has focused on Anglo-American
criminal procedure in the 18th and 19th centuries, is co-director of the Legal
History Program at the college, whose graduates include Illinois Supreme Court
Justice Lloyd Karmeier and Michael Strautmanis, longtime legal counsel to
President-elect Barack Obama. He has written a book that will be published this year on the
history of common law, along with numerous articles that have appeared in
peer-reviewed journals and law reviews. In 2008, Dean Smith was one of two recipients of the
university’s prestigious Campus Award for Graduate and Professional Teaching,
which recognizes excellence in the classroom, innovative approaches to teaching
and other contributions to improved instruction, including influence on
curriculum.
“I have been deeply impressed by the intensity and
dedication of Professor Smith’s work as a scholar and teacher of law, and by
the exciting vision he brings to the challenges of the law deanship,” said
Provost Linda Katehi.
Before joining the U.of I.,
Smith practiced law for five years at Covington & Burling in Washington,D.C., working primarily in patent
litigation, employment law and sports law, representing the National Football
League, National Basketball Association and National Hockey League. He received law and doctoral degrees from Yale University, where he was a Mellon
Fellow in the Humanities and senior editor of the Yale Law Journal. He received
a bachelor’s degree summa cum laude with highest honors in history from Williams College, and received bachelor’s and master’s
degrees in history from the University of Cambridge, where he attended as
a Hershel Smith Fellow.
One of the great problems that modern scholars have is keeping track of all the references that might go into one's articles and books. EndNote is a wonderful help for that part of the scholar's task. Today's column in the New York Times by Professor Olivia Judson of Imperial College, London -- normally her blog is on evolutionary biology -- contains a pitch for two programs that will help to keep track of all the references that can turn up on the Internet: Zotero (which is free) for the PC and Papers (which is available for $40) for the Apple. There are links in the article to the sites from which to download both programs. I've used Zotero for a few days and find it very easy to use and very helpful.
