Seeking more calm at work? Berkeley Judicial Institute Executive Director Judge Jeremy Fogel (ret.) wrote a primer on Mindfulness and Judging, which can be found on the Federal Judicial Center public website.
Mindfulness and Judging
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JUDICIAL ELECTIONS WHAT WE KNOW & DON”T KNOW
Charles Gardner Geyh (Indiana University Maurer School of Law) has posted this new article on judicial elections on SSRN:
In this essay, I begin with a discussion of established legal theory, which elucidates the difficulties created by calling upon judges to interpret and apply the law in a democratic republic. Next, I synthesize the scholarship, spanning thirteen books, that explains, defends, and critiques the modern era of judicial elections. Read synthetically, this body of work provides a well-developed, three-dimensional understanding of judicial elections at the turn of the 21st century. At the epicenter of the developments that this literature analyzes are battleground states where well-financed interest groups poured money into supreme court races to people high courts with judges whose perspective on tort liability was simpatico with that of their campaign supporters. That literature also reveals that tort reform campaigns in state judicial races later peaked as spending tapered off in the 2010s, signaling a lull in what leading, good-government interest groups denominated the “new politics of judicial elections. I argue that this lull ended with the 2023 Wisconsin Supreme Court election, which heralded the arrival of a new generation of judicial elections in which state supreme courts are becoming war-torn forums for the resolution of deeply divisive policy questions that the federal courts and the political branches of government have been unwilling or unable to address. It is a development that portends to be of unprecedented intensity and poses new challenges for legal theory and the existing judicial elections literature to explain. And it adds new urgency to an increasingly stark choice: whether to fight to preserve the distinctive role that judiciaries have long played in interpreting and upholding the rule of law; or to acquiesce to a new world order in which judges are politicized actors responsive to their constituencies in ways traditionally associated with the other, so-called “political” branches of government.
EXPERT CITES NON EXISTENT ARTICLES IN DEEP FAKE CASE
WHAT CAN A JUDGE SAY?
A California judicial ethics committee on Tuesday issued a formal opinion with guidance for judges responding to public criticism during a judicial election or recall campaign.
The guidance was issued by the California Supreme Court Committee on Judicial Ethics Opinions (CJEO)—a body which is appointed and authorized by, but works independently of, the California Supreme Court.
In CJEO Formal Opinion 2024-027, the committee analyzes the 2020 amendment to canon 3B(9) of the Code of Judicial Ethics, which permits, in connection with a judicial election or recall campaign, any judge to make a public comment about a pending proceeding, subject to certain restrictions. The committee outlines the ethical guardrails on the wider latitude judges now have to publicly respond to criticism:
- The comment may not affect the outcome or fairness of the proceeding; and
- It must be about the procedural, factual, or legal basis of a decision about which a judge has been criticized during an election or recall campaign.
The committee issued a draft of the opinion for public comment on August 5.
State Judges Critique Originalism
| From The Brennan Center: “The debate over relying on “history and tradition” in constitutional interpretation — known as originalism — is also playing out in state supreme courts, where justices “echo federal judges’ arguments and raise state-specific concerns of their own,” writes the Brennan Center’s Chihiro Isozaki. Judges’ critiques include that originalism reinforces the subordination of marginalized groups and that it’s a veneer for subjective value judgments. READ MORE“ |
What Is The Originalist Interpretation Of The First Amendment?
“Let’s Not Bring Back Jail for Swearing”: Online at The New York Times, law professors Jacob D. Charles and Matthew L. Schafer have a guest essay that begins, “With its new term starting this month, the Supreme Court will likely confront calls to upend constitutional law yet again. One very possible target is people’s everyday right to voice their political opinions, to speak up, even just to swear.”
HOW SHOULD JUDGES ACT WHEN DEALING WITH SOCIAL MEDIA?
At some level each judge must make your own decision regarding use of social media. If you decide never to use social media that surely is ethical. But what if you decide to participate in social media? The Canadian Judicial Council has released updated guidelines for federal judges using social media, outlining advice on the content they post, how they identify themselves on social media platforms, burner accounts, whom they connect with, and what platforms they post on.
The guidelines are a substantial expansion of the recommendations provided in the most recent edition of the Ethical Principles for Judges, the CJC’s framework for ideal judicial conduct, which briefly warns judges to be mindful of how the public will perceive their social media conduct.
HOW SHOULD WE DEAL WITH HOMELESSNESS?
If you attended the magnificent lecture by Dean Erwin Chemerinsky you heard his critique of the United States Supreme Court decision in Grants Pass v. Johnson. The case opened the door for jurisdictions that wish to use criminalization — including measures such as encampment sweeps and increased enforcement of quality-of-life offenses — to address homelessness and held that the Eighth Amendment does not prohibit making it a crime to sleep in public. So what should we do about homelessness? Governing Daily has an interesting article that suggests that there is no panacea in criminalizing homelessness. https://www.governing.com/urban/criminalizing-homelessness-can-lead-to-more-crime?utm_campaign=Newsletter%20-%20GOV%20-%20Daily&utm_medium=email&_hsenc=p2ANqtz-8aINTiCOUTcGJnzvfYsPrrmvYXu1z-E2oydrbrrNOOx8NrYhV5RtEXkxRhTb8VLLBSOtZqPY90cK-EY6RLzCH6znXBGg&_hsmi=328251408&utm_content=328251408&utm_source=hs_email
SHOULD A JUDGE WEAR A ROBE TO THE RED MASS?
A Red Mass is a Catholic Mass annually offered towards all members of the legal profession, regardless of religious affiliation marking the opening of the judicial year. The religious service requests guidance from the Holy Spirit for all who seek justice, and offers the legal community an opportunity to reflect on the power and responsibility of all in the legal profession.
Originating in Europe during the High Middle Ages, the Red Mass derives from the red vestments traditionally worn in symbolism of the tongues of fire (the Holy Spirit). Its name also exemplifies the scarlet robes worn by royal judges that attended the Mass centuries ago. Should judges wear their robes (regardless of the color of the robe to the Red Mass?
There is controversy about the Red Mass in Arizona. https://azcapitoltimes.com/news/2024/10/03/court-buries-finding-justices-erred-in-wearing-robes-at-religious-function/. The Arizona Judicial Ethics Advisory Committee received a request to weigh in on the ethical implications of judges wearing official robes at the Red Mass.
The committee returned a formal opinion against donning a robe at the Red Mass, or any religious service, given a potential appearance of undue influence, and reaffirmed the same upon a request for reconsideration from the state high court. Then, a majority of the justices voted to withdraw the opinion – effectively shielding it from public view and preventing it from manifesting in the state’s ethics canon.
So what is the right approach a judge should take regarding wearing a judicial robe at a religious service? Share your thoughts.
What Is Our Goal?
We all surely seek truth in the criminal justice system and yet we know that ascertaining the truth may often conflict with other values like due process.
Federico Picinali (London School of Economics – Law School) has posted an abstract of Aim or Preference? Reflections on the Commitment to the Truth in the Criminal Process (Law and Philosophy 2024) on SSRN. Here is the abstract:
It is widely accepted that the criminal process aims at the truth. It is also widely accepted that convicting the innocent is worse than acquitting the guilty. While apparently unrelated, these two claims are in tension with one another. The latter claim is traditionally used to justify a standard of proof that is skewed in favour of the defendant, aimed at protecting the innocent from conviction. A skewed standard, however, is not the standard of proof that minimises expected errors; that is, it is not the standard to choose if truth-finding is indeed the aim of the criminal process. The article attempts to overcome this tension. It argues that, if someone seeks consistency between the commitment to the truth and the commitment to protecting the innocent from conviction, they should treat true outcomes as a preference on which the process is based, not as a/the aim of the process. Notably, a preference entails a more modest practical commitment than that entailed by an aim. Taking this more modest commitment to the truth has implications for the regulation of any phase of the criminal process in which the value of truth appears to be in tension with non-epistemic values.
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