125. Ugada juice
An LA Times blog includes the comments of a "retired municipal judge" about the impact in Las Vegas of the "Juice" articles. (See post 122.) Basically: everyone was fascinated, no one was surprised. This particular retired judge, Dayvid Figler, who looks like he's just about old enough to graduate from law school, makes an interesting point:
There were no real surprises, because that is the way it works here. There is no requirement for disclosure. There is no requirement for recusal. There is often the appearance of impropriety. But it begs the question of if the judges are actually doing something wrong, and that is a question unanswered by the story.
This is inching close to the Martin Manton position, that it's not a bribe if you take money from the party in whose favor you were going to rule anyway - the position that prompted Learned Hand to call him "a moral imbecile." (See post 67.) (I always thought "moral imbecile" was just a finely-descriptive insult, but it turns out it was actually a psychological term once used to describe what modern psychiatrists would term a psychopath. Here's a little more confirmation of Hand's diagnosis.)
I suspect the Manton position is shared by many judges, and not just those in Las Vegas. Hey, if you're just doing your job, what's wrong with taking money from the litigants and lawyers? The reason the public can be sure my decisions aren't being influenced by all that cash is because that would be bad, and I'm not a bad person (just ask Mom), and anyone who suggests otherwise is cruising for a disciplinary complaint.
Figler goes on:
Here is the problem: judges operate within a very large zone of discretion. It is virtually impossible to tie in an exercise in discretion with the impropriety you can only suggest it. Judges are operating well within the law through allowable discretion. So, you don't want to piss a judge off. One of the untold parts of the story is the type of squeeze that a lot of judges put on lawyers to actually cough up some contribution. It is a very subtle pressure.
(You can tell Figler is a true lawyer by his avoidance of contractions - one of the weirder manifestations of lawyers' dread of change.)
The point that is both basic and difficult to keep in mind is that the law exists to restrain judges. In the old days, the judge was the clan elder, or the strongest / most ruthless warrior, or the hereditary king, or the king's privy council (you know, the guys who met in the Star Chamber). The ugada principle - the desire of those with power to exercise it arbitrarily - is very powerful. (See post 106.)
That's what Figler is describing: when judges have the discretion to reach any of several possible results on the same given facts, they are naturally tempted to choose the result that benefits themselves. If you've made the judge mad by failing to contribute, the judge rules against you, or rather against your client. Hey, nice little attorney-client relationship you got there. Shame if something should happen to cause your client to lose faith in you ...
Saturday, June 17, 2006 at 11:25AM in Crimes of Judging, Individual judges, Judicial independence/autonomy, Judicial self-interest
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