Ethics, Conduct and Discipline

Mark S. Hurtwitz.  Removing Judges: The Case of Immigration Judges Jeffrey Chase and Noel Ferris.  In the past few years the Second Circuit took the extraordinary step of removing two immigration judges from cases for evincing inappropriate behavior and conduct toward asylum seekers in their courts. As a consequence, in each case the Second Circuit vacated and remanded these judges’ decisions and ordered that further proceedings continue from different immigration judges. While the two cases are factually different, and indeed the behavior of one of these immigration judges seems somewhat more egregious than the other, they are remarkable in that the removal of judges for inappropriate conduct is not all that common a remedy.  (Vol. 31, No. 1)

Monte Kuligowski.  A Critical View of Gibson v. Commonwealth of Virginia.  This article finds that the misdemeanor trial practice has been fundamentally altered by Gibson v. commonwealth of Virginia.  The Virginia trial courts' uncodified tradition of deferring findings of guilt and taking certain cases under advisement has been chilled and, in many instances, has already been inflecibly frozen.  As long as the trial courts in Virginia are straitjacketed from deferring findings, an important element of criminal justice continues to be deferred in the commonwealth.  (Vol. 29, No. 2)

Mark S. Hurwitz.  Defaming a Judge: Murphy v. Boston Herald.  Legal notes describing the court proceedings of a defamation lawsuit and questions whether the court's decision will chill future media coverage on judges or the courts.  (Vol. 29, No. 1)

Louraine C. Arkfeld.  Ethics for the Problem-Solving Court Judge: The New ABA Model Code.  This article details the different role that judges in problem-solving courts play as opposed to traditional judges, and examines the 2007 ABA Model Code in reference to problem-solving courts, specifically the unique ethical dilemmas judges in these courtrooms are prone to face.  (Vol. 28, No. 3)

James Bopp, Jr. and Anita Y. Woudenberg.  To Speak or Not to Speak: Unconstitutional Regulation in the Wake of White.  This article discusses the debate over whether or not judicial candidates should voice their opinions on political issues, noting the discrepancy between the Supreme Court ruling, Republican Party of Minnesota v. White and the state rules, known as "pledges-and-promises" clauses and "commits" clauses, and analyzes how the White decision has affected extrajudicial speech, as well as the responses from states and the ABA on the matter.  (Vol. 28, No. 3)

John S. Cooke.  Judicial Ethics Education in the Federal Courts.  This article discusses the Federal Judicial Center's goal of increasing the sensitivity of judges' in regards to ethical matters, and the effectiveness of this goal implemented through the development of an ethics curricula for in-person programs and both hard-copy and online resources in addition to television programs.  (Vol. 28, No. 3)

Keith Rollin Eakins and Karen Swenson.  An Analysis of States' Responses to Republican Party of Minnesota v. White.  This article examines how the various state Supreme Courts have implemented the decision in Republican Party v. White, analyzing the disparity in responses by court level, the variety of contributing factors shaping states' reactions, and the effects of the White decision and this widespread spectrum of responses.  (Vol. 28, No. 3)

Deborah Goldberg.  How Much Speech for Judges?  This article analyzes contemporary jurisprudence regarding the amount of speech for judges, the lack of clarity in current case law, the institutional role of judges that inherently creates controversy, the changes that have been made, including legislative ramifications, and the responses of affected people, organizations, institutions, regarding extrajudicial speech.  (Vol. 28, No. 3)

Jona Goldschmidt.  Judicial Ethics and Assistance to Self-Represented Litigants.  This article examines the course of progression courts have made in attempt to increase the access to justice for pro se litigants, arguing that the increase in the self-represented litigant population in the courts is a widespread and continuing trend and one that is reflected in rule changes enacted in the last decades.  (Vol. 28, No. 3)

Cynthia Gray.  How Judicial Conduct Commissions Work.  This article details the process judicial conduct organizations employ to investigate, prosecute, and adjudicate complaints of judicial misconduct, discussing sanctions, confidentiality, committee membership, supreme court review, and the high dismissal rate.  (Vol. 28, No. 3)

Mark I. Harrison.  The 2007 ABA Model Code of Judicial Conduct: Blueprint for a Generation of Judges.  This article describes the makeup, the procedures, and the processes that lead to the founding of the ABA Joint Commission, which revised the ABA Model Code in 2007, as well as analyzes and discusses the significant changes from the previous Model Code regarding format, and proposed principle modifications.  (Vol. 28, No. 3)

Arthur D. Hellman.  Judges Judging Judges: The Federal Judicial Misconduct Statutes and the Breyer Committee Report.  This article considers the system utilized by the judiciary to deal with complaints of judicial misconduct, and examines the findings of a committee chaired by Supreme Court Justice Stephen Breyer, in the aftermath of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, the 2002 amendments, and the addition to the United States Code, Chapter 16.  (Vol. 28, No. 3)

Robert M. Howard.  I'm Sorry, Please Rescue Me Before I Hurt Myself.  This article discusses recusal clauses and judges' responsibility to ensure fairness and impartiality, analyzing the lack of clarity surrounding recusal requirements, the lack of formal disqualification procedures in many states, the statute laying out recusal, the system's dependence on self-recusal and the difficulty with this, and finally judicial misconduct due to the failure to recuse and what behaviors cross the line of ethical conduct.  (Vol. 28, No. 3)

Andrew J. Lievense and Avern Cohn.  The Federal Judiciary and the ABA Model Code: The Parting of the Ways.  This article tackles the root and growth of the ABA Canons of Judicial Ethics, the resulting transformation of the Canons into the ABA Model Code of Judicial Conduct, and the application and adoption of the ABA Model Code by the federal judiciary in the twentieth century, claiming there is a profound divergence between the federal ethics rules and the ABA Model Code stemming from the 1990s, a trend that is predicted to continue into the future.  (Vol. 28, No. 3)

Alan B. Morrison.  Judges and Politics: What to Do and Not to Do About Some Inevitable Problems.  This article discusses two of the most controversial and substantial 2007 changes to the ABA Model Code, the process of judicial election races, and the protocol for judges regarding political affiliation once in office, and analyzes lingering problems with the new Model Code.  (Vol. 28, No. 3)

Peter L. Ostermiller.  The New ABA Judicial Code as a Basis for Discipline: Defending a Judge.  This article analyzes the 2007 ABA Model Code from the perspective of a lawyer who defends judges, arguing from the bias that overall the new code improves the process, while some of the problems from this viewpoint are identified and discussed.  (Vol. 28, No. 3)

William E. Raftery.  2006 Judicial Election Litigation: A Post White Update.  This article examines the effects of Republican Party of Minnesota v. White during the 2006 election cycle, where White truly came into its own, analyzing the "pledges-and-promises," "commit," and "recusal" clauses, and discussing various cases, the relevant canons, the issues with standing to sue, and the outlook for future election cycles based on the findings from 2006.  (Vol. 28, No. 3)

Ellen F. Rosenblum.  Judicial Ethics for All: An Expansive Approach to Judicial Ethics Education.  This article investigates the way judicial ethics is currently being taught in state court systems, and surveys the need to broaden the teaching to various groups typically not addressed, arguing that this could enhance the appreciation of the judicial branch.  (Vol. 28, No. 3)

David B. Rottman.  Campaign Oversight Committee and the Challenge of Perpetuating Ethical Judicial Elections.  This article contemplates the role and the contribution of judicial campaign oversight committees, in regards to upholding ethical conduct though the process of judicial elections and historical examples of how these committees have participated in the past.  (Vol. 28, No. 3)

Rebecca Mae Salokar.  Endorsements in Judicial Campaigns: The Ethics of Messaging.  This article examines judicial endorsements including their sources, the process by which they are made, and how they can be tactically utilized by judicial candidates; discussing endorsements in regards to ethics and proposing reform mechanisms to prevent impermissible messaging by judicial candidates.  (Vol. 28, No. 3)

Robert H. Tembeckjian.  Judicial Disciplinary Hearings Should Be Open.  This article examines the disciplinary process in place to deal with judges partaking in unethical behavior, arguing that these incidents should be dealt with publicly to ensure honesty and public knowledge, and discusses the adoption of "sunshine laws" by 35 states.  (Vol. 28, No. 3)

Stephen L. Wasby.  The Code of Judicial Conduct and Lawyers' Ethics: A Little Case Study.  This article examines how the lawyers' code of ethics and the code of judicial conduct work together to evaluate behavior of both lawyers and judges when cases of misconduct arise, through the analysis of the 1977 incident in the U.S. Court of Appeals for the 9th Circuit, where lawyers utilized ex parte communications to try to influence a case regarding the Truth in Lending Act and the Federal Reserve Board Rule Z.  (Vol. 28, No. 3)

Mark S. Hurwitz.  Judges and the Rule of Necessity: Igancio and the Ninth Circuit's Judges.  This article discusses the rule of necessity as applied in Ignacio when all the judges of the Ninth Circuit were listed as defendants thus forcing some of the judges to remain on the case.  (Vol. 28, No. 2)

Robert M. Howard.  The Limitations on Judicial Free Speech.  In examining the decision of the Judicial Council of the Second Circuit concerning the conduct of a judge, this article examines the balance between the right to free speech and the necessity of impartial judges.  (Vol. 27, No. 3)

Robert M. Howard.  Recess Appointments: Does the Constitution Mean What It Says.  This note weighs judicial conduct against free speech in Mississippi where a county justice made some disparaging remarks about gays and lesbians.  (Vol. 27, No. 1)

Robert M. Howard.  Balancing Court Room Safety and Free Expressions: Huminski v. Corsones.  This note explores the Second Circuit's ruling in Huminski v. Corsones where the Second Circuit was faced with addressing two major issues.  (Vol. 27, No. 1)

Tom Clark.  A Note on the Moore Cases and Judicial Administration.  This note examines the cases arising from the installation of the Ten Commandments in the Alabama State Judicial Building by then Chief Justice Moore.  (Vol. 26, No. 3)

Todd Lochner.  The Judge and the Discharged Clerk Revised.  This article discusses First Amendments Rights of judges’ clerks who are terminated from their position because of caustic comments they make to the judges who employ them in the case of Sheppard v. Beerman which involved such a situation.  (Vol. 26, No. 2)

Stephen L. Wasby.  Rejecting a Challenge to the Federal Discipline Statute: More from the McBryde Proceedings.  This article discusses the rejection of a challenge to the Federal Discipline Statute.  (Vol. 22, No. 1)

Stephen L. Wasby.  Do Judges Protect Each Other?: Confidentiality of Judicial Discipline Proceedings.  The author of this piece looks to determine whether or not judges are preferential in their determination of how to treat cases involving other judges.  This was especially prevalent in Supreme Court cases, in which a constitutional issue involving a judge had to be resolved.  The author determined that indeed a case was more likely to be dismissed if a judge was the defendant or the case was more likely to be concluded in the favor of his fellow judge.  (Vol. 18, No. 1)