This PDF contains my slides from teaching the duty of competence, allocating the decision-making between the lawyer/client, finding and billing clients, the duty of confidentiality, and part of conflicts of interests. More to come soon! Knake PR Slides Classes 4-12
The winner of the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is Rebecca Aviel, for “The Boundary Claim’s Caveat: Lawyers and Confidentiality Exceptionalism.” The Prize will be presented at the Section Lunch of the AALS Section on Professional Responsibility, which will take place on Saturday, January 5, at 12:30 pm, at Palace Cafe on Canal Street.
One of my goals this semester has been to use a 1-2 minute video clip every 10-15 powerpoint pages. Here are three of the videos I used in Chapter 6:
1. For Gentile v. State Bar of Nevada, I showed the trailer from the Duke Law School documentary on the case.
2. For the case holding WIlliam Kunstler in contempt, I shared an excerpt from the documentary on Kunstler, Disturbing the Universe.
3. For the section on financial scandals, I used a short video on the Enron scandal.
Three months ago a divided New Jersey Supreme Court defied Governor Chris Christie and affirmed a trial judge’s ruling in DePascale, J.S.C. v. State that State Constitution’s no diminution clause barred a legislated increase in the pension and health benefit contributions of the state’s appointed judiciary. When Christie denounced the lower court judge as a protector and member of a “little cliquey club of 423” the State Bar Association rose to the defense of judicial independence and Assignment Judge Linda Feinberg, the Trenton judge whose court was the mandatory venue for Judge Paul DePascale’s challenge.
When the Supreme Court ruled that take-home pay could not be diminished the Governor and Legislature promptly proposed and placed on the ballot Public Question No. 2. It would amend the constitution. Voters – 70% of whom – a recent Rutgers Eagleton poll reports – favor the measure overwhelmingly – will be asked:
Do you approve an amendment to the New Jersey Constitution, as agreed to by the Legislature, to allow contributions set by law to be taken from the salaries of Supreme Court Justices and Superior Court Judges for their employee benefits?
New Jersey judges are nominated by the Governor, confirmed by the State Senate for a seven year term, then must repeat the process to receive tenure until the mandatory retirement age of 70. During Christie’s three year tenure there has been a standoff between Governor and Legislature, leaving two vacancies on the high court. (Christie has vowed to remake the Supreme Court which he considers to be too liberal.) But here the branches are united in budget-cutting zeal. Though it may be spitting into the wind, the State Bar has again responded strongly, seeing the measure as a threat to the independence of judges who already must twice run the political gauntlet of nomination and confirmation. NJSBA President Kevin P. McCann’s open letter can be found HERE.
Fit for classroom discussion is whether the Bar Association is merely currying favor with judges or if it has correctly identified a real threat to the integrity of the judicial process.
The Atlantic has been running a series on judicial elections. There is no escape from politics in judicial selection. Holmesian legal realism tells us that the prejudices of men have had more impact than the syllogism in the life of the law. We neither can nor should escape from politics in selecting judges: that is we are entitled to know where their sympathies lie and where they stand on the major policy concerns that are likely to come before them. Attitude to the death penalty, abortion, affirmative action, campaign finance, `tort reform’, etc. is certainly a proper area of inquiry for those who nominate, confirm, and vote for judges.
Judicial independence is also of great importance. A judge has responsibilities that go far beyond the interests of contributors, elected officials, and any particular group of voters. Within the broad confines of the law a judge should be free during her term in office to make a principled judgment that takes into account the public interest, the proper balance of forces among branches of government, etc. The biggest challenge is that if a term is limited the judgment of whoever decides on renewal is likely to weigh heavily on the shoulders of the judge who wants to keep the job. In an era when term limits have been popular for legislative and executive branch figures we will not see a move to federal life tenure. `Political’ choices are certain to remain with us – whether in retention elections or political nomination/confirmation battles like those which have roiled New Jersey politics since Chris Christie was elected Governor.
This campaign video advertisement for Texas Supreme Court justice Don Willett describes him as the “most conservative” member of the court. He is pictured reading Bible stories to his daughter. Like the Code of Conduct for United States Judges, the Texas Code in Canon 3(a) (1) provides ” A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.” Does the video raise concerns about Willett’s impartiality or partisanship? Is it proper to campaign as the most liberal? most conservative?
Casebook contributor Laurel Terry recently returned from London where she spoke at the closing session of the first-ever International Conference of Legal Regulators http://www.international-conference-of-legal-regulators.org/ . The conference brought together lawyer regulators from around the worth to exchanges information and views on the challenges they face and their approaches to regulation. The conference concluded with a commitment by the regulators to form a network to continue these types of exchanges. Regulators in other fields – such as securities and antitrust – participate in these types of international networks.
Jed Shugerman is a brilliant young historian. Amazing how going back to the record lifts the cloud of myth. One is that we freed judges from politics by making them appointed rather than elected. That is certainly the received wisdom. But Harvard law prof Shugerman looks back to the 19th century and reports that people elected judges in order to insulate them from interference by governors and legislators.
So when we lament – as I do – the successful campaign to remove Iowa Supreme court judges who voted for same sex marriage, it is good to remember that the electorate is only one pressure group of many – as we are seeing in the stalemate in New Jersey over nominees to the Supreme Court – the liberal character of which Gov. Chris Christie unashamedly wants to change. – GWC
Judicial Independence, But From What? – Jotwell: Legal History:
by Stuart Banner
If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine.
No other country has this system, so why do we? To the extent there is a conventional historical account, it is that judicial elections were a product of Jacksonian democracy. The idea was to reduce the independence of judges, to bring them closer to the will of the people, to shift power from insulated elites to accountable citizens. That’s a plausible enough story. I believed it.
In The People’s Courts, Shugerman shows that this isn’t true at all.
h/t John Steele – Legal Ethics Forum