Copyright (c) 2009 New York University Annual Survey of American Law
New York University Annual Survey of American Law
"TRADEOFFS OF CANDOR: DOES JUDICIAL TRANSPARENCY ERODE LEGITIMACY?": SYMPOSIUM: WHEN JUDGES SHOULD BE SEEN, NOT HEARD: EXTRAJUDICIAL COMMENTS CONCERNING PENDING CASES AND THE CONTROVERSIAL SELF-DEFENSE EXCEPTION IN THE NEW CODE OF JUDICIAL CONDUCT
NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW
64 N.Y.U. Ann. Surv. Am. L. 559
MARK I. HARRISON* AND KEITH SWISHER**
Attorneys tend to disagree with judges' comments concerning the merits of pending cases - in the form of opinions, orders, or bench rulings - roughly fifty percent of the time. But as we ultimately conclude in this Article, there is strong cause to disagree with judges' extrajudicial comments concerning the merits of pending cases, particularly those in the form of responses to criticism, approaching 100 percent of the time. That is indeed a strong conclusion, particularly because we believe that categorical rules generally should be rendered flexible for the sake of fairness. While we would reconsider our nearly categorical conclusion when presented with a compelling justification to do so, the discussion that follows suggests such reconsideration may be a long time coming; we identify in this Article several previously unidentified or unarticulated justifications for the longstanding ban against most, but not all, extrajudicial 2 comments.
The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. 3 Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media - contacts that are unknown to, or at least practically uncorrectable by, the parties. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially ...
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