Judicial roles in nonjudicial functions.

• Published date: 22 December 2013
• Author: Garoupa, Nuno,Ginsburg, Tom,Garoupa, Nuno^Ginsburg, Tom
• Date: 22 December 2013

ABSTRACT

Judges perform nonjudicial functions in many contexts. Most jurisdictions regulate these functions in multiple ways, by statute and by custom. We provide a theory of judicial demand and judicial supply for nonjudicial functions. By teasing out the determinants of judicial involvement in nonjudicial functions, we show the potential market failures and the need for regulation. We suggest that some limitations on the judicial exercise of non judicial functions seem justified. However, these limits might vary across jurisdictions depending on institutional and contextual factors.

TABLE OF CONTENTS
                INTRODUCTION
                I. NON JUDICIAL FUNCTIONS
                II. A THEORY OF JUDICIAL ROLES IN NON JUDICIAL FUNCTIONS
                 A. Supply Side
                 B. Demand Side
                 C. Potential Market Failures
                III. DISCUSSION OF EXAMPLES
                 A. United States
                 B. United Kingdom
                 C. Israel
                 D. Canada
                 E. Australia
                 F. South Africa
                 G. Other Common Law Jurisdictions
                 H. France
                 I. Germany
                 J. Other Civil Law Jurisdictions in Europe
                 K. Latin America
                 L. China
                 M. The Philippines
                CONCLUSION
                

INTRODUCTION

We all know that the job of judges is to decide cases. Yet in many jurisdictions, judges also engage in multiple nonjudicial functions ranging from serving on law commissions, playing management roles, serving as public intellectuals, and even serving as interim executives. In a notable recent example, in the midst of a serious political and economic turmoil, the President of the Greek Supreme Administrative Court was appointed to be the interim Prime Minister. (1) Justices have also served as acting presidents in Bolivia, (2) Bangladesh, (3) and Pakistan. (4) One of the most significant constitutional crises in Brazilian history in October 1945 was resolved when the incumbent president was forced to resign while the Chief Justice was appointed as acting president. (5)

Are there any limits to judicial engagement in nonjudicial functions? Evidently the distinction between a judicial and a nonjudicial function is in itself complicated and convoluted. (6) Case law has struggled to establish clear legal doctrines that offer a concise definition of a judicial function. (7) Impartiality, non-partisanship, and adjudication seem to be associated with a judicial function. (8) However, this conceptualization leaves an enormous gray area of functions that fundamentally are also adjudicative in nature and where judges are welcome due to their perceived independence and impartiality. For example, when judges are involved in private arbitration, is this a judicial function or not? The answer to this question is all but clear. (9)

The involvement of judges in nonjudicial functions also raises significant questions concerning the separation of powers doctrine. (10) In fact, when judges take an important role outside of the judicial branch of government, they could be interfering directly with other branches as well as undermining the independence of the judiciary by endorsing extrajudicial adjudication or effectively undermining judicial review, for example. Additionally, nonjudicial functions could seriously compromise the impartiality of the judges in question. Furthermore, judicial participation in extrajudicial roles raises questions concerning the extent to which immunity privileges enjoyed by judges extend to nonjudicial functions. (11)

Not surprisingly, most jurisdictions regulate judicial involvement in nonjudicial functions. In the United States, the Code of Judicial Conduct allows some involvement (mostly related to legal activities, education, and charitable work) and prohibits others. (12) Participation in government commissions and public hearings is usually the most controversial. (13) Other jurisdictions, such as South Africa, have developed a specific incompatibility test to decide on possible nonjudicial functions. (14) Yet there are also jurisdictions that have very few formal restrictions. (15) Most jurisdictions make a sharp difference between nonjudicial functions during tenure and post-tenure, with less intensive restrictions for the latter. In the words of the United States Supreme Court in Mistretta v. United States, "[t]he ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch." (16)

Absent significant statutory limitations, Canada and Australia have seen the development of the persona designata doctrine to regulate judicial participation in activities outside of the judicial branch of government. Perceived to be based on the doctrine of separation of powers, the goal is to undermine possible uses of judicial power outside of judicial functions. (17)

For the purpose of our analysis, we consider a judicial function an activity exercised by a judge inside the courtroom whereas by nonjudicial role we understand an activity exercised by a judge outside of the courtroom. (18) Thus, the phenomenon recently characterized as the judicialization of public policy is usually achieved through formal court decisions, and hence is considered a judicial function within our analysis. (19) We recognize that there is some relationship between judicialization and nonjudicial roles in the sense that an infinite judicialization would inevitably eliminate nonjudicial roles as we understand them. However, by clearly distinguishing nonjudicial functions from other well-known phenomena, we provide for a better understanding of judicial behavior.

Based on our theory of judicial reputation, (20) we provide an explanation for why judges might be involved in nonjudicial functions. Notice that judicial involvement in nonjudicial functions requires two explanations. First, judges have to be willing to perform such functions voluntarily, meaning that they must enjoy some benefits generated within nonjudicial tasks--the supply side. Second, other political and social relevant actors must desire judicial participation. Judicial participation in nonjudicial functions must yield certain payoffs to the relevant actors who select them--the demand side. We contend that both parties are motivated by reputation concerns; the judges wish to enhance their reputations, while other actors seek to draw on the reputation of the judiciary for impartiality and integrity. However, given that nonjudicial functions impose some costs in terms of collective reputation on the judiciary, some limitations are likely to be appropriate. In fact, we contend that potential market failures justify some form of regulation in this context.

This Article proceeds as follows. Part I summarizes possible nonjudicial functions and the degree to which we expect them to be performed by judges. Part II develops a theory of judicial participation in nonjudicial functions. Part III concludes the Article.

I. NON JUDICIAL FUNCTIONS

We can consider a continuum of nonjudicial functions in terms of being more or less similar to judicial functions. At one end of the spectrum, there are nonjudicial functions that can be seen as quasi-judicial in nature or seemingly judicial functions. Next we move to nonjudicial functions that benefit from judicial expertise or are related to courts and the legal system more generally. We also have nonjudicial functions that simply reflect community engagement. Finally, we have nonjudicial functions attached to the other two branches of government: legislative and executive. We also add business activities at the end of the list. In particular, we suggest the following framework:

(i) Seemingly judicial functions: private arbitration, serving in tribunals as a mediator or in ad-hoc tribunals on restorative justice;

(ii) Quasi-judicial functions: auxiliary functions such as electoral courts, deciding presidential powers, supervising political parties;

(iii) Nonjudicial functions related to judicial functions: management of courts, serving in judicial council or other commissions related to the court system or to judicial selection, retention, promotion, or disciplinary action;

(iv) Nonjudicial functions that are adjudicative in nature: chairing inquiries (royal commissions in the United Kingdom or in Australia, public hearings in the United States), special prosecutors, specialized investigations on corruption or terrorism, adjudicating impeachment of political actors;

(v) Nonjudicial functions that promote law: teaching and writing, working in judicial associations;

(vi) Social and community activities: involvement with nonprofit activities, participation in nonjudicial associations;

(vii) Seemingly legislative functions: participation in law making commissions or working groups, serving on electoral boundaries commissions, supervising constitutional amendments;

(viii) Seemingly executive functions: chairing administrative agencies (usually crime prevention related); serving as ambassadors or executive officers;

(ix) Full legislative functions: legislator;

(x) Full executive functions: member of the administration, serving as ambassador; and

(xi) Business activities: involvement with for-profit activities, including lawyering and serving on corporate boards or directorships.

These nonjudicial functions are not equivalent in nature. Arguments that certain activities benefit from judicial skills and independence might apply to the top of the list, but they are very unclear when we consider the bottom of the list. Similarly, arguments against judicial involvement in nonjudicial functions are apparently stronger for those at the bottom than at the top of the list. Not surprisingly, most jurisdictions are permissive with seemingly judicial or quasi-judicial functions but regulate more extensively any judicial involvement in legislative and executive functions.

Business activities might benefit from judicial knowledge and human capital, in particular if the activities are law-related, but they expropriate from the entire judiciary its collective...