The Institute for the Advancement of the American Legal System (IAALS) has released a new report entitled Recommendations for Judicial Discipline Systems. Authored by University of Arizona law professor Keith Swisher and Brookings Fellow Russell Wheeler, it is a careful and sober analysis of existing judicial discipline systems, with recommendations for improving the process in a way that protects judicial independence and integrity as well as public expectations about efficiency, fairness, and transparency.
Cribbing from the Preface:
Effective judicial discipline is an important part of a trusted and trustworthy court system. The public must know that judicial ethics and violations of the Code of Judicial Conduct are taken seriously. Absent that assurance, the system appears self-serving, protectionist, and even potentially corrupt. And it is not just the reality of the existence of effective systems that matters; it is also the appearance. A wholly effective system with no transparency and no public confidence will not suffice.
To explore the functioning of judicial conduct commissions, in March 2018, IAALS convened a 21-person group of commissioners, commission staff, judges, lawyers, and scholars (identified in Appendix A). They, along with IAALS Executive Director Rebecca Kourlis and a small number of IAALS staff, worked through the agenda in Appendix B. This Report draws on that Convening.
Longtime readers of this blog know how much I have come to respect William Howard Taft as a Chief Justice: his tireless efforts to modernize and autonomize the federal judiciary transformed the Third Branch forever. Now, Jeffrey Rosen has written a short and masterful book on Taft, ostensibly focused on Taft’s Presidency, but delightfully cognizant of Taft’s lifelong judicial temperament and ambitions.
I shall have much more to say about Rosen’s book soon, but in the meantime I was delighted to see him blogging at the Volokh Conspiracy last week. The subject: what would William Howard Taft do about the political challenges of our day? The final installment, on Taft’s approach to judicial independence in the face of persistent populist attacks by prominent politicians (sound familiar?) is here.
The University of California, Berkeley has launched a new Judicial Institute to explore the personal and professional issues that judges face. The Institute will be run by the Hon. Jeremy Fogel, U.S. District Judge for the Northern District of California, and for seven years the head of the Federal Judicial Center.
This is an exciting project, and landing Judge Fogel is a major coup. I’ll look forward to following the Institute’s work in the coming months and years.
The Federal Judicial Center, the research arm of the federal courts, turned 50 yesterday.
The FJC is well-known but probably underappreciated. It allows the court system to investigate its own operations — from the ways procedural rules are employed to the manner in which cases are allocated. Its seminal work on weighted caseloads, court productivity, and the frequency and nature of motions to dismiss and motions for summary judgment (among many other things) have helped the court system understand and adapt its procedures to promote efficiency and cost-effectiveness. In addition, having a top-notch research institution in-house allows the courts to investigate issues of interest without having to rely on external sources.
If you have not explored the FJC’s research library, it’s worth a careful look. It is indispensable for those who study the federal courts, or simply want to know more about their operations.
Happy birthday and congratulations!
New England Law | Boston is pleased to host the New England Regional Junior Faculty Scholarship Workshop on Friday, February 2, 2018.
The workshop will bring together junior law school faculty to present works in progress. The workshop is timed to allow participants to incorporate feedback before the spring article submission cycle, but papers and “ideas in progress” are welcome at any stage of completion. New England Law | Boston will provide a light breakfast and lunch to attendees. There is no fee for attending the workshop, but participants will be responsible for their own travel expenses.
The workshop is open to all non-tenured faculty (including fellows and VAPs) at any law school in the United States and Canada. Each participant will be asked to present his or her own paper or project and to serve as a primary discussant on another attendee’s paper or project. To ensure an atmosphere conducive to lively discussion and constructive feedback, space is limited to twenty participants. Papers are welcome on any law-related topic, and the conference organizers will strive to group related topics together.
To participate in the workshop, please send an e-mail to Jordy Singer (firstname.lastname@example.org) by Tuesday, January 16, 2018. In the e-mail, please indicate the title of your paper or work in progress, and include a short abstract. Any questions about the conference can be directed to Jordy Singer at the address above.
The workshop will alternate locations every year in collaboration with the faculty at Albany Law School.
Typically, critiques of money and judicial politics focus on the concern that donors to judicial campaigns will expect favors from a judge after election, compromising the judge’s impartiality. In a bizarre twist, the Buffalo News reports on a judicial candidate who is spending her donors’ contributions on other, unrelated campaigns:
When local attorneys, business people and others donated a record amount of money to Acea M. Mosey’s campaign fund, they knew they were giving money to an experienced lawyer and Democratic Party stalwart running for Erie County Surrogate Court judge.
What they may not have known is that some of their donations – at least $33,393 – would go to political parties, political organizations and seekers of a wide variety of other political offices, including candidates for Congress, Erie County sheriff, the mayor of Buffalo and chairman of the Erie County Democratic Committee.
Mosey’s campaign organization, Mosey for Surrogate committee, this year has given money – either in donations or expenditures – to a total of 167 political candidates, parties and organizations, according to a Buffalo News analysis of state Elections Board records.
Mosey, by the way, has raised $900,000 for her judicial election campaign even though she is running unopposed.
The Legal Intelligencer reports that only 17.5% of federal appellate cases decided on their merits were disposed of after oral argument in 2015-16, the most recent statistical year available. Put another way, nearly five out of every six cases that are filed in the U.S. Courts of Appeal are decided without any sort of oral hearing. That is a significant drop: ten years ago, nearly 26% of cases received an oral hearing before disposition. Twenty years ago, the number was better than 40%.
The decline in hearings at the appellate level is, unfortunately, representative of a larger trend. A few years ago, Judge William Young (D. Mass.) and I examined the time that federal district judges spent on trials and courtroom hearings — a statistic we called “bench presence” — and found a year-over-year decline from FY2008 through FY2013. By 2013, federal district judges — our trial judges! — reported spending about only 2 hours a day on average in the courtroom.
Continue reading “Oral arguments in federal court continue to decline”