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An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman

Articles

Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to …

Comments On Proposed Amendments To The Rules For Judicial-Conduct And Judicial-Disability Proceedings, Arthur D. Hellman

Testimony

In late 2017, prominent Ninth Circuit Judge Alex Kozinski was accused of engaging in sexual harassment and other misconduct over a long period during his tenure as a judge. Judge Kozinski resigned, but the controversy continued. The Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018.

In September 2018, the Committee on Judicial Conduct and Disability (Conduct Committee) of the Judicial Conference of …

A First Look At The Proposed 'Fraudulent Joinder Prevention Act Of 2015', Arthur D. Hellman

Testimony

Almost half a century ago, the American Law Institute observed, “The most marked abuse has been joinder of a party of the same citizenship as plaintiff in order to defeat removal on the basis of diversity jurisdiction. Such tactics have led to much litigation, largely futile, on the question of fraudulent joinder.” Over the last half century, the volume of litigation on this question has only increased. In response, Congress is now actively considering legislation to address the problem of fraudulent joinder.

The bill is H.R. 3624, the “Fraudulent Joinder Prevention Act of 2015” (FJPA). The FJPA seeks to prevent …

Proposed Amendments To The Federal Judicial Misconduct Rules: Comments And Suggestions, Arthur D. Hellman

Testimony

In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved a revised set of rules for handling complaints of misconduct or disability on the part of federal judges. Moving away from the decentralizing approach of the pre-2008 Illustrative Rules, the new rules were made binding on all of the federal judicial circuits.

On September 2, 2014, the Conference’s Committee on Judicial Conduct and Disability (Conduct Committee) issued a set of draft amendments to the Rules. The announcement invited comments on the proposed amendments. This statement was submitted in response to …

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …

Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman

Testimony

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the …

When Judges Are Accused: An Initial Look At The New Federal Judicial Misconduct Rules, Arthur D. Hellman

Articles

On March 11, 2008, the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, approved the first set of nationally binding rules for dealing with accusations of misconduct by federal judges. The new rules implement recommendations made by a committee chaired by Supreme Court Justice Stephen Breyer. The Breyer Committee found that although the judiciary has been doing a very good overall job in handling complaints against judges, the error rate in high-visibility cases is far too high.

The new regulatory regime comes into existence at a time when federal judges have been accused of …

Dueling Class Actions, Rhonda Wasserman

Articles

When multiple class action suits are filed on behalf of the same class members, numerous problems ensue. Dueling class actions are confusing to class members, wasteful of judicial resources, conducive to unfair settlements, and laden with complex preclusion problems. The article creates a typology of different kinds of dueling class actions; explores the problems that plague each type; considers the effect the Supreme Court's decision in Matsushita Electric Industrial Co. v. Epstein, 516 U.S. 367 (1996), has had on these problems; evaluates the efficacy of existing judicial tools to curb them; and proposes an array of possible solutions. The more …