Judges Commons^™

The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson

Pepperdine Law Review

The Supreme Court is one of our most precious institutions. However, for the last few years, American confidence in the Court has dropped to a new low. Less than 40% of Americans have confidence in the Court and its decisions. Recent revelations regarding luxury trips, gifts, and exclusive access for certain individuals to the Justices have raised questions about whether the Justices understand their basic ethical duties and can act in a fair and impartial manner. As commentators have noted, the Supreme Court stood as the only court in America that was not governed by an ethical code. The question …

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

Why The Dobbs Draft Release Makes It Tougher To Teach Legal Ethics, Lynne Marie Kohm

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

Reconceiving Ethics For Judicial Law Clerks, Gregory Bischoping

St. Mary's Journal on Legal Malpractice & Ethics

Judicial law clerks hold a unique and critical position in our legal system. They play a central part in the functioning of the judiciary, oftentimes writing the first draft of their judge’s opinions and serving as their trusted researcher and sounding board. Moreover, they are privy to the many highly confidential processes and private information behind the important work of the judiciary. It stands to reason the comprehensive set of ethical duties that bind the world of lawyers and judges should also provide guidance for judicial law clerks. The most important among those ethics rules is a duty of confidentiality. …

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication, David Ingram

Philosophy: Faculty Publications and Other Works

Thanks to Axel Honneth, recognition theory has become a prominent fixture of critical social theory. In recent years, he has deployed his recognition theory in diagnosing pathologies and injustices that afflict institutional practices. Some of these institutional practices revolve around specifically juridical institutions, such as human rights and democratic citizenship, that directly impact the lives of the most desperate migrants. Hence it is worthwhile asking what recognition theory can add to a critical theory of migration. In this paper, I argue that, although its contribution to a critical theory of migration is limited, it nonetheless carves out a unique body …

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton V. Massey Coal Co., Lynne H. Rambo

Lynne H. Rambo

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a …

The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell

St. Mary's Journal on Legal Malpractice & Ethics

The legal profession is bound by ethical rules that govern and guide our conduct and actions as lawyers. One of the under-appreciated, but profoundly important set of guidelines is the Texas Standards for Appellate Conduct. These Standards serve as an excellent practice guide for appellate practitioners and appellate courts and as a model code of conduct for the Bar as a whole.

The goal of this Article is to dissect the Texas Standards for Appellate Conduct and provide useful commentaries for the readers to better appreciate and understand each element of the Standards. The commentaries provide direct case examples and …

A Status Update For Texas Voir Dire: Advocating For Pre-Trial Internet Investigation Of Prospective Jurors, Luke A. Harle

St. Mary's Law Journal

The Internet provides trial attorneys an additional tool to investigate the backgrounds of prospective jurors during voir dire. Online searches of a person’s name and social media accounts can reveal information that could be used as grounds for a challenge for cause or to facilitate intelligent use of peremptory strikes. Texas lawmakers have not yet provided any official guidance as to whether attorneys can investigate prospective jurors online or how they might do so, should it be allowed. Texas’s current voir dire structure, judicial opinions, and ethics opinions, together, support the notion that Texas trial attorneys should be given opportunities …

The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski

Touro Law Review

No abstract provided.

Responding To Judicial And Lawyer Misconduct: Analyzing A Survey Of State Trial Court Judges, Peter M. Koelling

St. Mary's Journal on Legal Malpractice & Ethics

While reported cases or incidents may give us insight into the interpretation of Rule 2.15 of the Model Code of Judicial Conduct, they do not give us a sense of how often judges undertake the obligation to act under the rule. The Judicial Division of the American Bar Association developed a survey to explore the interpretation and the implementation of Rule 2.15 of the Model Code of Judicial Conduct, and to determine how and in what manner state trial court judges responded to ethical violations by lawyers and other judges. The survey looked back over a ten-year period and was …

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Problems Concerning Litigating Custom And Practice Cases, Steve Ryals

Touro Law Review

No abstract provided.

Recovering Judicial Integrity: Toward A Duty-Focused Disqualification Jurisprudence Based On Jewish Law, Shlomo Pill

Fordham Urban Law Journal

No abstract provided.

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

Samuel J. Levine

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

Scholarly Works

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton V. Massey Coal Co., Lynne H. Rambo

Faculty Scholarship

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a …

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Embodying Law In The Garden: An Autoethnographic Account Of An Office Of Law, Matilda Arvidsson

Dr Matilda Arvidsson

Based on an autoethnographical study of the office of the tingsnotarie this article questions the relation between the ethical self and the act of taking up a judicial office, employing the question of how I can live with (my) law. While the office and the ethical self are kept apart, often by recourse to persona, I make a case for the attendance to the self in examinations of ethical responsibility when pursuing an office of law. I propose that the garden, and in particular the practices and notions of (en)closure, (loss of) direction, cultivation, (dis)order, authorship and care-for-the-other which are …

A Free Lunch In Chicago, Curtis E.A. Karnow

Curtis E.A. Karnow

A discussion of the ethical issues implicated by judges’ acceptance of travel and related expenses when attending privately sponsored judicial education, including seminars offered by educational institutions.

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Articles in Law Reviews & Other Academic Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.

Mediation By Judges: A New Phenomenon In The Transformation Of Justice , Louise Otis, Eric H. Reiter

Pepperdine Dispute Resolution Law Journal

This article has three principal parts. In the first, we present an overview of judicial mediation and how it responds to some of the perceived problems with the classical model of adjudication. In this analysis, we draw especially on the experience with judicial mediation at the appellate level at the Quebec Court of Appeal. In the second part, we examine the unfolding of the mediation process itself, using an annotated guide to judicial mediation to address broader issues of both practical and theoretical concern. In the third part, we consider the crucial question of ethics in mediation, signaling some of …

Legal Ethics For The Millennials Avoiding The Compromise Of Integrity, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Making Stuff Up, Richard H. Underwood

Law Faculty Scholarly Articles

Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark

Articles in Law Reviews & Other Academic Journals

In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …

Separate And Obedient: The Judicial Qualification Missing From The Job Description, J. Amy Dillard

All Faculty Scholarship

The national debate about the role of judges, their qualifications and ideologies consumes news coverage, as evidenced by the recent appointment hearings of Chief Justice John Roberts and Justice Samuel Alito and the aborted nomination of Harriet Miers. The American Bar Association is in the process of re-evaluating and updating its Model Code of Judicial Conduct. The poverty of the quality of the debate, with legislators on both sides of the aisle discussing a few political issues and largely ignoring issues of ethics and temperament, leaves the public with little helpful information about whether judicial candidates will abide by the …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

Scholarly Works

A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.