While I share your hope, let's say it DOES pass, and becomes law. And let's say the law is challenged as unconstitutional on first amendment grounds (I'm not a lawyer and perhaps those aren't the best grounds, by that's not my question...): so the case comes up for judicial review. Given the nature of the case, don't all judges have to recuse themselves?

Riptide,

When I say it is "weird," that doesn't mean I fail to recognize the *goals* of those who are behind the legislation. I realize the goals, I just find the resulting legislative effort pretty strange.

Hi Orin,

According to Tim Dowling in the comments to David's post, "every federal executive branch attorney (and indeed every federal executive branch employee) is prohibited from personally accepting these travel gifts, and I know of no instance in which U.S. DOJ or any other federal agency has accepted reimbursement of travel expenses to allow an agency employee to attend seminars that raise similar ethics issues."

Do you find these restrictions on the education of executive branch employees equally strange?

I think this is an undue intrusion into the judicial role and thus violative of federal judges' inherent Article III powers. Seriously.

I agree with Orin that the wording is awkward, and the distinctions probably wrong. But I agree with Trevor that the general thrust of the bill is a good idea. I think that the bill should be amended to be fairer while still avoiding personal corruption - does Orin have a suggestion how to make that work?

Trevor writes:

Hi Orin,

According to Tim Dowling in the comments to David's post, "every federal executive branch attorney (and indeed every federal executive branch employee) is prohibited from personally accepting these travel gifts, and I know of no instance in which U.S. DOJ or any other federal agency has accepted reimbursement of travel expenses to allow an agency employee to attend seminars that raise similar ethics issues."

Do you find these restrictions on the education of executive branch employees equally strange?

Trevor, I don't, for two reasons. First, the executive branch has resources specifically available for trips such as this. If executive agency thinks it would be good for an employee to be trained, the government pays for the training. As far as I know, the judiciary does not have such funds. Perhaps the answer is for Congress to give funds for judicial education to the judges much like they give funds to the executive?

  Second, there are millions of federal government employees, and they mostly perform their work in secret. Influencing someone who performs his work in secret creates a more serious risk of improper influence. By contrast, judges are a much smaller group that hand down written opinions that are public; they can't secretly rule in favor or against a particular side.

I think there are ways to educate judges besides paying for them to go on junkets, and I'm surprised that anyone's surprised that such junkets raise any ethical issues.

CrazyTrain's comment is interesting, but would Article III bar a prohibition against judges' accepting outright bribes? I think not. Even if the junketing judges, like Sir Francis Bacon, deny that they were influenced by the bribes gifts bestowed upon them.

Oren - do you really believe that criminal defense attorneys are the target of this law - ore even that they will be impaired if it passes.

I guess it is possible that groups of defense attorneys might scrape up a few hundred grand and put on something at a 5 star resort somewhere, but I don't hear about that happening very often.

On the other hand, it is commonplace for pharmaceutical companies, and various corporation interests (directly or via their propaganda fronts like the American Enterprise Institute) to sponsor such outings.

Orin, I don't read the proposed amendment as having any impact at all on "official travel." "Official travel" for a judge would be something like, say, a district judge who is sitting on the circuit by designation running up travel bills when s/he goes off to Richmond or Philly or Boston or whatever for a sitting. Or a judge going to his/her circuit's judicial conference.

It's not clear to me that "official travel" for a judge must (or even should) include things like going off to speaking engagements. (And isn't that mostly what we're talking about here? How often do judges go off to conferences and CLE's simply to attend them as students, as it were, without getting up and speaking?)

I think it's also important to note that what we're talking about here is a reimbursement policy. It's not, as David initially suggested, a prohibition on attending events or speaking anywhere. Judges can still do that all they want -- just on their own nickel.

I was listening to the radio yesterday and Neal Boortz was complaining about some official wanting to make a law that "certifies" some profession or service (in Atlanta?) Therefore that profession or service needs to be "certified" before it can be in business. It turns out that official owns a company that "certifies" that same profession or service.

I think there may be a parallel situation here. Follow the money.

This reaches far beyond "junkets." If a law school wants to have a few federal judges preside over a moot court competition, it couldn't do so, under these rules, or there would be a cap which would prevent the judges from doing so very often.

How about the loss to lawyers going to CLE and other functions? This would prohibit paying for the travel so that lawyers could be exposed to and hear first hand from distinguished judges from around the country.

Judges are already removed enough from society. This would force them off the public stage and behind the mysterious chamber doors even more. It would be detrimental to the functioning of the judiciary.

I suspect most judges don't particularly enjoy going on many of these trips and would prefer, on the whole, to stay home with their families. But they go because it's important for them to go, because the formal and informal interactions at such functions help tie us together as a nation and as a profession. This legislation is just silly.

they can't secretly rule in favor or against a particular side.

Just because there is a written opinion, that does not mean that the "real" reason for the decision is not secret.

I think that Orin's lack of concern about judicial branch corruption is puzzling.

If judges are in need of more education to do their jobs, why not provide it for them through government funding?

There is really no good reason not to.

If a law school wants to have a few federal judges preside over a moot court competition, it couldn't do so, under these rules, or there would be a cap which would prevent the judges from doing so very often.

Local judges can reside over moot court competitions without the need to rack up large amounts of travel expenses. Also, law professors and attorneys can likewise reside over such competitions.

How about the loss to lawyers going to CLE and other functions? This would prohibit paying for the travel so that lawyers could be exposed to and hear first hand from distinguished judges from around the country.

If this really important, why not have CLE courses given by notable judges recorded and transmitted over the internet at government expense.

Judges are already removed enough from society. This would force them off the public stage and behind the mysterious chamber doors even more. It would be detrimental to the functioning of the judiciary.

This does not "force" judges off the public stage. This makes them pay for their own travel.

If having judges meet with and interact with the general public is really important (something I doubt), why not have government funds available for this purpose?

I suspect most judges don't particularly enjoy going on many of these trips and would prefer, on the whole, to stay home with their families. But they go because it's important for them to go, because the formal and informal interactions at such functions help tie us together as a nation and as a profession.

There is nothing that cannot be accomplished by appropriated government funds. There is no reason to risk the corruption of judges.

This legislation is just silly.

Maybe if a corrupt judge ruled against you, you wouldn't think it was silly to prevent he corruption of judges.

The bottom line is that judges are too important to allow outside groups to finance fancy trips for them under the pretext of "educating" them. The impartiality of judges is important enough that they should have all necessary educational expenses financed by government.

And my presumption is that the education conferences in fact serve an educating objective that benefits judicial decisionmaking.

This is a ridiculous presumption. When it comes to ensuring the integrity of the judicial branch, we should spare no expense. And we should not make any foolish presumptions that allow for and encourage corruption.

<blockquote>
I suppose what is deemed wrong with the practice is whatever perks (like means) they receive at the conference. Surely that is so minimal that it wouldn't compromise them.
</blockquote>

We're talking here about gifts of thousands of dollars per trip, and not a minimal gift. And if you go to ANY convention, exhibitors give out pens and post-it pads. The don't do it for altruistic reasons. they think, with good reason, that it influences intelligent professionals and businesspeople whose self-interest and (if any) fiduciary interest does not lie in using the advertised products. Even the ball point pen is not given away because the vendor wants to make it easy for the recipient to write on paper.

<blockquote>
I would think that the disparity in the capabilities of counsel in cases would be a much greater potential bias.
</blockquote>

The question is not whether disparity between lawyers is a greater influence than freebie meetings, but whether freebie meetings are a significant influence at all. Querae: Would you want your case heard by a judge whose campaign fund received a $3000 contribution from your opponent's law firm, and nothing from yours? What if you thought your case was much better and your lawyer's advocacy skills were better than those on the other side? What if you respected the judge's integrity? And isn't a gift to go to a meeting in a nice place where a judge can also play golf and tennis pretty much analogous to a campaign contribution in this context?

<blockquote>
But if we trust the judges to overcome that and see through the arguments of better counsel, surely we should trust them to see through biased arguments at a judicial education conference.
</blockquote>

We DON'T trust them to see through biased arguments without hearing the arguments from the other side. We ordinarily do not allow ex parte communication with counsel once a case is joined. Judges are supposed to hear both sides and rule, because bias involves not just logical analysis but biased presentation of facts, which neither judges nor anyone else can detect without refutation.

<blockquote>
And my presumption is that the education conferences in fact serve an educating objective that benefits judicial decisionmaking.
</blockquote>

Accepting this assertion <i>arguendo</i>, it does not follow that giving a judge a gift to attend the conference also serves an educational objective that benefits judicial decisionmaking.

I'm sorry, Prof. Cross, but you are raising straw men to shoot down.

1. does this mean the absolute ban on outside seminars was never there as the WSJ and david B had suggested..and it was only a ban on compensation for certain trips? (that would seem to me to be all that was in the amendment)

2. WHERE ON EARLTH DID YOU GET YOUR HANDS ON THIS TEXT??? it hasnt been uploaded to thomas..and ive looked and seen it nowhere else on the internet

I think that Orin's lack of concern about judicial branch corruption is puzzling. If judges are in need of more education to do their jobs, why not provide it for them through government funding? There is really no good reason not to.

Isn't that sort of an odd comment after I proposed a system of government funding for judicial education?

More broadly, I think there are valid concerns about improper judicial influence. I just don't see them as particularly strong in the context of voluntary education seminars.

"can you cite any cases in which the court's ruling has been called into question because a private group paid travel expenses?"

Are judges required to disclose who finances their junkets? Without such information, this question is difficult to address.

I'm a little surprised at the mistrust of judges here. I'm used to seeing that from the right, but the left is out here in full force.

I would have a problem with a tobacco company giving a judge a $15,000 stipend to give a speech, and then seeing that judge rule on a tobacco case. I have no problem with a university giving a judge money to make a speech or attend classes, if that judge doesn't rule on a case involving that university.

Could someone please explain how the corruption scenario would come to pass. Who do you think is trying to influence judges? To do what?

And if you go to ANY convention, exhibitors give out pens and post-it pads. The don't do it for altruistic reasons. they think, with good reason, that it influences intelligent professionals and businesspeople whose self-interest and (if any) fiduciary interest does not lie in using the advertised products. Even the ball point pen is not given away because the vendor wants to make it easy for the recipient to write on paper.

Right, because nothing is more influential to the intelligent professional mind then a bag full of low-rent Chinese trade-fair crap that either breaks or loses most of its advertising print in three months, or is simply used without said text ever being examined again. Moreover, how do you know that the self- and fiduciary-interest of the recipient does not lie in using the advertised products? Sometimes an advertised product or source of information actually is superior for a given application, and the only reason it wasn't in use before, is that the party who would have benefited from it was previously unaware of its existence.

This portion of your argument is wholly uncompelling. There is such a thing as corrupting a person's judgment, but informational presentations and trinkets are not the way to achieve it.

There is such a thing as corrupting a person's judgment, but informational presentations and trinkets are not the way to achieve it.

Right. Pretty silly of the drug companies, for instance, to spend millions on that kind of thing, knowing that nothing will come of it. Kinda shakes one's faith in capitalism.

I'm a little surprised at the mistrust of judges here.

I'm used to seeing that from the right, but the left is out here in full force.

I would have a problem with a tobacco company giving a judge a $15,000 stipend to give a speech, and then seeing that judge rule on a tobacco case. I have no problem with a university giving a judge money to make a speech or attend classes, if that judge doesn't rule on a case involving that university.

I'm on the right!!

I would not mind a university giving a judge money to attend classes, all other things being equal. But I would object to exempting universities or any other class of donors from rules intended to prevent undue influence on judges.

This portion of your argument is wholly uncompelling. There is such a thing as corrupting a person's judgment, but informational presentations and trinkets are not the way to achieve it.

So should these vendors all fire their marketing people for stupidity?

Why do you suppose they give the stuff out? So that people have positive feelings about the enterprise whose name is imprinted. They don't think that a cheap ball point pen will serve as a bribe. They think that the recipient will be more likely to give the company's salespeople a sympathetic hearing when they come around.

Again, you have raised a stray man when you imply that corruption of judgment is a quantum phenomenot. There are infinite gradations, and the more sympathy and identification is engendered between vendor and purchaser, the better for vendor.

The same is true when the product is ideas.

And, BTW, I do not carry merchandise with a vendor's imprint, nor do I allow nay to be on display in my office. We buy our ball point pens.

This is probably too late to do any good, but for what it’s worth, here are some quick, targeted responses. First, Orin, let me thank you for elevating the debate. We’ve run into this problem before, with people like John Fund describing legislative proposals on judicial travel gifts as “banning attendance,” and with others repeating the falsehood without reading the proposal or checking the facts. Thanks for posting the text.

You ask about the purpose of the seminars. Others might disagree, but personally I don’t think the subjective intent of the host is dispositive of the ethics issues. AUSAs can’t personally accept these travel gifts regardless of whether the giver has any business before DOJ. The Executive Branch gift ban is based on the simple notion that you shouldn’t reap large private gains due to your public service. AUSAs and every other ex. branch employee are prohibited from personally accepting free week-long trips to Hilton Head offered because of the govt position, regardless of the intent. The same should hold true for judges.

But to answer your question, GMU Dean Mark Grady explained that LEC’s purpose is “to influence minds . . . . If court cases are changed, that is something that we are proud of as well.” FREE trustee and frequent lecturer James Huffman explained (pp. 25-26) that FREE’s seminars fit hand in glove with litigation campaigns waged by Pacific Legal Found., Wash. Legal Found., and similar groups, some of which share common funding with FREE. Or you could ask Phillip Morris, which funds LEC because it views LEC (along with litigation shops like WLF and PLF) as “Key Allies” in its “Strategic Focus.” LEC invites lecturers like Kip Viscusi, George Priest, and others who serve as expert witnesses for tobacco interests in litigation. I suspect these expert witnesses enjoy the chance to lecture federal judges on “Science in the Courts” without the hassle of cross-examination. One judge wrote to LEC to say that he set aside a $15 million anti-trust verdict “as a result of [his] better understanding” of law and economics acquired at an LEC seminar. There have been similar conflicts involving Texaco and many other corporations, none of which are cured by throwing in seminar fig leaves on Thucydides.

You question whether the Executive Branch analogy is on point because you’re unsure whether public money is available to support judicial CLE, as it is with Executive Branch lawyers. Public money is available for judicial CLE, and we’ve supported increases to ensure judicial CLE is fully available for any judge who wants it. Because it’s public money, however, the seminars it funds typically are not held Hilton Head, Amelia Island, and other resort locations, which makes them less attractive for some.

David’s “Update” takes issue, in strong terms, with the distinctions drawn in the proposed Kyl amendment regarding seminar hosts that are exempt from the reimbursement ban, stating that the exemptions are “self-serving” and unprincipled. The exemptions come from the existing disclosure rules promulgated by the Judicial Conference, which is chaired by Chief Justice John Roberts. Presumably, they reflect the Judicial Conference’s best effort to identify seminar hosts that do not raise serious ethics issues and thus warrant exemption from the disclosure requirements. If people have criticisms, they should direct them to the Judicial Conference. But calling their handiwork unprincipled, as David suggests, seems shrill even by blogosphere standards. I’m no expert on the NJC or the ABA’s Judicial Division, but it doesn’t seem unreasonable to me for Senator Kyl to use the judiciary’s own ethics rules as a point of departure for his amendment.

I couldn’t help but chuckle when someone suggested these seminars are being held in Arlington VA. They’re often held at Amelia Island, the Omni Tucson, and other resort locations because, as Dean Grady put it, “that’s a very useful place to have a conversation.” Prof. Cross, continue to mail out your treatises, but if you fly federal judges into Hilton Head for a week to read them, that would raise issues.