Title

Judges Breaking the Law: An Empirical Study of Financially Interested Judges Deciding Cases

Document Type

Article

Publication Date

2020

Abstract

We present the first extensive study of nonrecusals by federal district judges and report two key empirical findings. First, we found seventy-five judges participated in over 200 total cases despite owning stock in one of the two parties to the litigation, a clear violation of both statutory law and judicial ethics. As we used a very conservative methodology and did not review every judge, this is a lower bound on recusal failures. Second, we found judges who employ very different strategies when deciding whether to recuse due to a potential financial conflict of interest. This variability signals two distinct problems: the current rules as to when a judge should or should not recuse are unclear, and, as a result, judges fail to recuse when they should and also recuse when they should not. This suggests a clear need for reform.

We provide a theoretical framework to evaluate judicial recusal policies due to financial relationships. We identify a trade-off between two core concerns of the judiciary: fairness and legitimacy. Fairness considerations suggest treating a judge's financial interests in a party like other relationships that judges have with litigants, lawyers, or witnesses. Legitimacy concerns urge a carve out for particular types of financial interests that would lead observers to think a judge could be acting to advance their own financial interests. These suggestions represent both a fundamental reorientation of existing recusal law and theory and a practical solution to a fundamental problem that has gone unobserved for too long.

Share

COinS