May judges attend privately funded educational programs? Should judicial education be privatized? Questions of judicial ethics and policy.

• Author: Green, Bruce A.

INTRODUCTION

Three private institutions devote significant resources to educating judges: the Foundation for Research on Economics and the Environment (FREE); the Law and Organizational Economics Center (LOEC) of the University of Kansas; and the Law and Economics Center (LEC) of the George Mason University School of Law. (1) Each of these institutions invites judges to attend free educational seminars, provides free food and lodging (in some cases, at resort settings), and wholly or partially reimburses the judges' travel expenses. (2) The various judicial seminars offered by these institutions are designed for and exclusively available to judges. (3) Each institution offers seminars addressing topics relating to law-and-economics. LEC and FREE also offer seminars relating to science, and FREE also offers seminars relating to the environment. (4) Dozens of entities--including foundations, corporations, and law firms--contribute to these institutions' judicial education programs. (5) Hundreds of judges have attended at least one seminar, and many have attended more than one. (6)

Since at least 1979, privately funded programs for judicial education, particularly in the area of law-and-economics, have been the subject of public discussion (7) and often public criticism. (8) In 1980, the Institute for Public Representation at Georgetown University formally petitioned the United States Judicial Conference to address the question of whether the Code of Judicial Ethics allowed federal judges to attend such programs. (9) In 1993, the Alliance for Justice published a study that criticized the programs themselves for improper academic bias. (10)

Most recently, in July 2000, Community Rights Counsel (CRC) published a study focusing on judicial seminars relating to environmental law. (11) CRC argued that the seminars were a veiled effort to lobby the judiciary. CRC also called for a ban on private reimbursement of judges' expenses in attending educational programs. (12) The concerns expressed in the CRC report prompted a spate of editorials criticizing privately-funded judicial education, (13) as well as a program aired by ABC's 20/20, hosted by Barbara Walters, exposing so-called "Junkets for Judges." (14) Senators John Kerry and Russ Feingold supported a federal bill to bar federal judges from attending private seminars (Kerry-Feingold bill). (15)

The attendance of judges at programs sponsored by the three institutions has also sparked litigation. In a recent case, a party contended that a judge who had attended privately-funded seminars could not fairly preside over the action. (16) In another case, a judge planning to attend a seminar sponsored by FREE raised the question whether he must therefore recuse himself "out of an abundance of caution and fairness." (17)

Notwithstanding these expressions of concern, judicial organizations such as the Judicial Conference of the United States have permitted judges to attend privately-funded seminars. Individual judges, determining that their attendance does not contravene applicable legal or ethical restrictions, have done so. In May 2001, in remarks to the American Law Institute, Chief Justice Rehnquist defended privately funded programs as "a valuable and necessary source of education in addition to that provided by the Federal Judicial Center." (18) Chief Justice Rehnquist joined the Judicial Conference of the United States and the Board of the Federal Judicial Center in opposing the Kerry-Feingold bill.

The first parts of this Article address questions of judicial ethics raised by privately-funded judicial seminars and how they are answered by existing legal and ethical standards. Part I discusses the relevant restrictions and describes the courts' determination that these restrictions do not bar judges' participation in judicial seminars. Part II considers whether this determination is rooted in a reasonable understanding of existing restrictions and concludes that it is. There is ample support for the view that judges may ordinarily attend educational seminars at no cost to themselves and have their expenses reimbursed. There is also ample reason to conclude that judges who attend judicial seminars are generally not required to recuse themselves from cases involving a party or affiliate that contributed to the educational institution that organized and sponsored the seminar.

Part III considers whether the existing standards and processes that judges have used to address the controversy are sufficient. It concludes that these standards and processes do not completely resolve the controversy. The question of whether judges should attend privately-funded judicial seminars is not solely a question of individual judges' ethics to be resolved by self-regulation. It is also a question of judicial policy that should be resolved by the judiciary as an institution. The question is, in essence, whether judicial education should be privatized. This question is posed uniquely by LEC, FREE, and LOEC, the only private institutions regularly offering expenses-paid judicial seminars oriented toward a particular perspective on legal questions that come regularly before the courts.

In considering these questions, the Article focuses particularly on law-and-economics seminars, which have existed the longest and have been criticized the most. The Article begins with a factual assumption central to criticisms of judges' participation in these seminars--namely, that the seminars are "biased" in the following sense: although there is room for debate about whether, to what extent, and how economics principles should be employed in various legal contexts, the directors of these programs hold particular views on these questions that influence how they organize the seminars and to whom they teach them. (19) In particular, the program directors favor the application of "free market" economics principles (20) in situations where individuals with a different legal philosophy would employ alternative approaches to developing or interpreting the law. (21) Contributors generally share the legal philosophy of those who direct the various educational institutions. (22) Further, contributors anticipate that some judges, having attended these seminars, will be more inclined to employ economics principles that accord with the contributors' philosophy. (23) Whether the seminars are academically "biased" in the above sense, (24) or in other senses, is a question that, until now, judicial institutions have not thought necessary to resolve. Apparently, the judiciary believes that it is permissible for judges to participate even if charges of bias are true. This Article concludes that the judiciary is right as a matter of existing judicial regulation, but that the inquiry should not end with the application of existing laws and rules of judicial ethics.

1. BACKGROUND TO THE QUESTIONS OF JUDICIAL REGULATION

   A. Generally Applicable Restrictions

   When presiding over judicial proceedings, judges are required to be neutral and impartial. (25) To insure an impartial judiciary, judges' extrajudicial conduct and relationships are subject to various bodies of regulation. These include the Constitution's Due Process Clause, (26) federal and state statutes, (27) and codes of judicial ethics. (28) Together, these are intended to promote public confidence in the integrity of the judicial system.

   1. Constitutional Requirements

      As interpreted by the Supreme Court and other courts, the Due Process Clause sometimes requires judges to "recuse themselves when they face possible temptations to be biased, even when they exhibit no actual bias against a party or a case." (29) Although the common law rule was that a judge would be "disqualified for direct pecuniary interest and nothing else," (30) the constitutional rule goes somewhat further. The Due Process Clause requires disqualification where the judge has a direct pecuniary or other interest in the outcome of the case, so that there is a significant incentive for a judge to favor one side. (31) The constitutional provision does not require recusal, however, where there are other conceivable reasons for a judge to be biased. For example, even though they may offer a "possible temptation" to be biased, "[m]atters of kinship [or] personal bias ... would generally be matters of legislative discretion." (32) As one court has explained:

      This merely recognizes, at least implicitly, that in the real world, "possible temptations" to be biased abound. Judges are human; like all humans, their outlooks are shaped by their lives' experiences. It would be unrealistic to suppose that judges do not bring to the bench those experiences and attendant biases they may create. A person could find something in the background of most judges which in many cases would lead that person to conclude that the judge has a "possible temptation" to be biased. But not all temptations are created equal. We expect--even demand--that judges rise above these potential biasing influences, and in most cases we presume judges do. .... As the common law recognized, and as experience teaches, the lure of lucre is a particularly strong motivation, and therefore judges ought to be prohibited from presiding over cases in whose outcomes they have a direct financial interest. Of course, the Supreme Court has held that the due process clause requires disqualification for interests besides pecuniary interests. But the constitutional standard the Supreme Court has applied in determining when disqualification is necessary recognizes the same reality the common law recognized: judges are subject to a myriad of biasing influences; judges for the most part are presumptively capable of overcoming those influences and rendering evenhanded justice; and only a strong, direct interest in the outcome of a case is sufficient to overcome that presumption of evenhandedness. (33) Thus, for the most part, the Constitution leaves...