Monday, August 4, 2008

Hellman on Federal Judicial Ethics

Posted by Alan Childress

Arthur Hellman (University of Pittsburgh) -- shown right [and below left when he teaches on the west coast, with a difference explained here] -- has just re-posted to SSRN's journal of Legal Ethics & Professional Responsibility his revised and updated article (also appearing last year in Pitt's law review, vol. 69). It's called "The Regulation of Judicial Ethics in theHellmanad Federal System: A Peek Behind Closed Doors."  The abstract is:

Ethical issues involving federal judges have been much in the news recently. Among other developments, the House Judiciary Committee held a hearing to consider impeaching a federal district judge; the Judicial Conference of the United States announced two major policy initiatives; and a committee chaired by Justice Stephen Breyer issued an in-depth report on the operation of the judicial misconduct statutes.

This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a Canola_mayo_jar_bf case if (among other circumstances) the judge's impartiality "might reasonably be questioned," or if he or she has "a financial interest ... in a party to the proceeding." The first-quoted prohibition has generated a large body of case law. The second has proved to be a fertile ground for muckraking by investigative reporters, in part because judges can easily fail to remember or recognize that they own shares in corporations that are parties to cases on their dockets. In September 2006 the Judicial Conference of the United States directed all federal courts to institute "automatic conflict screening" using standardized hardware and software. This is a substantial step forward, but a purely internal screening program does not serve the interest in transparency.

The second set of issues involves the operation of the misconduct statutes. A 1980 statute, now codified as Chapter 16 of Title 28, creates a detailed set of procedures for handling complaints against judges and taking appropriate action in instances of judicial misconduct. The Breyer Committee found that in handling the vast bulk of complaints, the judiciary has properly implemented the 1980 Act, but that in high-visibility cases, the rate of error is "far too high." The committee's report and other recent developments point to several aspects of the system that deserve scrutiny. Primary among these is the lack of visibility; neither the availability of the process nor the outcomes of proceedings are sufficiently publicized.

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I received an interview request on Friday from WSJ author, Nathan Koppel, who had just interviewed Hellman. Koppel's article will be about the efficacy of the current "kiss-your-sister" operation,[1] which article may appear later this week or next. Keep an eye out for it.

[1] See Ronald D. Rotunda, “The Courts Need This Watchdog,” Washington Post, Dec. 21, 2006 at A-29.

Posted by: Sean Harrington | Aug 4, 2008 11:14:38 AM

I just posted the full article by WSJ's Nathan Koppel, "For 'Maverick' Federal Judges, Life Tenure Is Largely Unfettered License" (August 8, 2008). Koppel briefly interviewed me for the article (`though I'm not mentioned) and, according to our Web traffic logs, he conducted a good deal of research on in prepartion. The full article is posted near the top of this page:

Posted by: Sean Harrington | Aug 8, 2008 11:02:13 AM

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