Dealing with Judicial Misconduct in the States: Judicial Independence, Accountability and Reform

21 Pages Posted: 15 Nov 2015 Last revised: 19 Nov 2015

Date Written: 2007

Abstract

Inherent in Roscoe Pound’s 1906 speech to the American Bar Association is the basic premise that American courts and judges, as public institutions and officials in a representative democracy, must be responsive to the public and held accountable for their actions. Only in a democracy would concerns over the causes of popular dissatisfaction with the administration of justice be given a public airing. Pound’s speech was also premised on the notion that developments that compromised judicial independence, a basic tenet of American democracy, would similarly erode public confidence in the courts.

Maintaining confidence in the judiciary anticipates that judges will be held to high standards of conduct. However, at the time Roscoe Pound delivered his 1906 speech to the American Bar Association, published standards, rules, or guidelines establishing ethical norms for the state judiciaries were virtually nonexistent. One hundred years later, all state judiciaries are not only subject to officially adopted codes of judicial conduct or canons of judicial ethics but are also subject to modern disciplinary mechanisms for enforcing these ethics standards. Although Pound might applaud this development insofar as it promised greater accountability, he might also have expressed concerns over the possibility that it might intrude on judicial independence.

The purpose of this article is twofold: (1) to make preliminary observations concerning the tension between judicial independence and accountability in establishing and enforcing standards of conduct for the state judiciaries, and (2) to offer preliminary thoughts on the factors that gave rise to the development of the judicial conduct commission, the predominant disciplinary body for addressing misconduct in the state judiciaries. The literature on factors that gave rise to, or encouraged, judicial reform measures during the twentieth century is fairly sparse. It is hoped that these thoughts and observations will encourage further inquiry. Part II will describe this reform measure and trace the history of its adoption in the states; Part III will provide the structural details of this reform measure and examine its adoption and implementation in selected states; and Part IV will offer observations and conclusions about this reform in the broader context of representative democracy.

Keywords: Judicial Misconduct, Ethics, Accountability

Suggested Citation

Alfini, James J. and Gupta-Brietzke, Shailey and McMartin IV, James, Dealing with Judicial Misconduct in the States: Judicial Independence, Accountability and Reform (2007). South Texas Law Review, Vol. 48, 2007, Available at SSRN: https://ssrn.com/abstract=2690409

James J. Alfini (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

James McMartin IV

Independent

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