May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized? Questions of Judicial Ethics and Policy

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INTRODUCTION

Three private institutions devote significant resources to educating judges: the Foundation for Research on Economics and the Environment (FREE); the Law and Organizational Economics Center (LOEC) of the University of Kansas; and the Law and Economics Center (LEC) of the George Mason University School of Law. (1) Each of these institutions invites judges to attend free educational seminars, provides free food and lodging (in some cases, at resort settings), and wholly or partially reimburses the judges' travel expenses. (2) The various judicial seminars offered by these institutions are designed for and exclusively available to judges. (3) Each institution offers seminars addressing topics relating to law-and-economics. LEC and FREE also offer seminars relating to science, and FREE also offers seminars relating to the environment. (4) Dozens of entities--including foundations, corporations, and law firms--contribute to these institutions' judicial education programs. (5) Hundreds of judges have attended at least one seminar, and many have attended more than one. (6)

Since at least 1979, privately funded programs for judicial education, particularly in the area of law-and-economics, have been the subject of public discussion (7) and often public criticism. (8) In 1980, the Institute for Public Representation at Georgetown University formally petitioned the United States Judicial Conference to address the question of whether the Code of Judicial Ethics allowed federal judges to attend such programs. (9) In 1993, the Alliance for Justice published a study that criticized the programs themselves for improper academic bias. (10)

Most recently, in July 2000, Community Rights Counsel (CRC) published a study focusing on judicial seminars relating to environmental law. (11) CRC argued that the seminars were a veiled effort to lobby the judiciary. CRC also called for a ban on private reimbursement of judges' expenses in attending educational programs. (12) The concerns expressed in the CRC report prompted a spate of editorials criticizing privately-funded judicial education, (13) as well as a program aired by ABC's 20/20, hosted by Barbara Walters, exposing so-called "Junkets for Judges." (14) Senators John Kerry and Russ Feingold supported a federal bill to bar federal judges from attending private seminars (Kerry-Feingold bill). (15)

The attendance of judges at programs sponsored by the three institutions has also sparked litigation. In a recent case, a party contended that a judge who had attended privately-funded seminars could not fairly preside over the action. (16) In another case, a judge planning to attend a seminar sponsored by FREE raised the question whether he must therefore recuse himself "out of an abundance of caution and fairness." (17)

Notwithstanding these expressions of concern, judicial organizations such as the Judicial Conference of the United States have permitted judges to attend privately-funded seminars. Individual judges, determining that their attendance does not contravene applicable legal or ethical restrictions, have done so. In May 2001, in remarks to the American Law Institute, Chief Justice Rehnquist defended privately funded programs as "a valuable and necessary source of education in addition to that provided by the Federal Judicial Center." (18) Chief Justice Rehnquist joined the Judicial Conference of the United States and the Board of the Federal Judicial Center in opposing the Kerry-Feingold bill.

The first parts of this Article address questions of judicial ethics raised by privately-funded judicial seminars and how they are answered by existing legal and ethical standards. Part I discusses the relevant restrictions and describes the courts' determination that these restrictions do not bar judges' participation in judicial seminars. Part II considers whether this determination is rooted in a reasonable understanding of existing restrictions and concludes that it is. …