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June 18, 2008

A timely scholarly piece in light of the Kozinski kerfuffle

I am still thinking about what to think about the Kozinski kerfuffle (though I love the alliteration that comes with calling this story a kerfuffle).  While I think, I plan to check out this article I just noticed on SSRN, titled "When Judges Are Accused: An Initial Look at the New Federal Judicial Misconduct Rules."  Here is the abstract:

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 ethical transgressions that span the spectrum of actionable misbehavior.  Indeed, at least three judges face the possibility of impeachment proceedings.

This article examines the newly adopted misconduct rules against the background of these recent controversies.  The underlying question is the same one that Congress grappled with when it established the current statutory framework in 1980: can federal judges be trusted to investigate and impose appropriate discipline for misconduct in their ranks?

The article begins with a brief account of the history that led to the promulgation of the new rules.  Next, the article outlines the procedures established by Congress and the judiciary for handling allegations of misconduct by federal judges.  The remainder of the article addresses the major issues raised by the new rules: the move toward greater centralization in the administration of the disciplinary system; the definition of misconduct; the possible need for greater procedural formality; the nature and timing of public disclosure; and efforts to make the process more visible.

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June 18, 2008 at 04:18 PM | Permalink


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Professor, I'm, really offended by your treatment of Judge Kozonski's recent "hiccup." While I'm no fan of Judge K's jurisprudence, and agree that it was stupid of him not to know that his website was publicly accessible, what unethical or illegal conduct has he committed? So, he likes LEGAL porn and is presiding over a child porn case- big f'in deal!!!!There's no allegation that the materials on his site were/are obscene. To equate his "interests" as requiring recusal would require, let's see, the disqualification of any judge who has a driver's licens and who has also had an alcoholic drink from any DUI case. It would require the recusal of any judge who hunts, or legally owns a gun, from any felon in possession of a firearm case. The man has not even been accused of doing ANYTHING illegal. Why is it appropriate to hold him up as the poster child for "Judges Gone Wild"?

Posted by: | Jun 18, 2008 9:44:51 PM

A couple quick responses, anon at 9:44:51 PM:

1. Are you realy " offended"(!) by my "treatment" of Judge Kozonski? All I have done is keep up with the story and ask a few questions about its impact. If you really are "offended," you take offense quite easily and perhaps should be more understanding of others who take offense at the kinds of pictures that the Judge was archiving.

2. Does your opinion change if there is a sound basis for alleging that one of the Judge's pictures involved child porn? At least one of the pictures I saw from the Judge's collection could qualify as child porn. I am not confident that he has not done anything illegal given the broad federal definition of child porn.

3. I have never asserted or suggested that the Judge had to recuse himself from the trial he was presiding over. (The Judge mad his own decision, and so you should be attacking him, not me, for that recusak.) Still, given how rare it is for circuit judges to preside over trials, I think there is something peculiar about the fact that this circuit judge collected weird (legal?) porn pictures and was trying this weird porn case. I would like to know more about exactly how and why he was the trial judge on this case.

4. To play out your analogy more effectively, I think you ought to consider whether it is okay if/when a (circuit) judge known to be a heavy drinker who has crashed his car a few times was actively seeking to preside over a controversial and high-profile DUI trial.

Posted by: Doug B. | Jun 19, 2008 6:51:44 AM

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