Volume 56, Issue 2

Remembering Mark Hummels

Foreword | View PDF

When Judges Err: Is Confession Good for the Soul?

Essay | View PDF

Judicial Performance Review in Arizona: A Critical Assessment

Judicial performance evaluations are a relatively new tool for assessing judges and providing information to voters to help them determine whether to retain judges in contested or retention elections. Arizona implemented its judicial evaluation program about 20 years ago, and since that time, the state has continually strived to improve its process. The result is that today Arizona has one of the most progressive and comprehensive judicial performance evaluation programs in the United States. This Article takes a critical look at the strengths and weaknesses of Arizona’s program, keeping in mind two key values that the system seeks to protect: judicial accountability and judicial independence.

Article | View PDF

“It’s Called Lunch”: Judicial Ethics and the Political and Legal Space for the Judiciary to Lobby

It has long been known that governments build partnerships with, and lobby, other governments for resources, for public policy changes, and to fight off encroachments on their power. The independence of U.S. courts is related to its perception of impartiality, fairness in decision-making, and isolation from politics. To some, this means that it is important that court officials remain above politics and resist urges to become entangled in political battles. As an independent branch of government, how do courts enter the political process, interact with other branches, and participate equally in the political process, if they must also remain impartial and appear “apolitical”?

Past research demonstrates that court officials may indeed behave conservatively in their political work out of fear of political entanglement. However, as with any governmental body, the need of resources, creation of policy beneficial to the branch, and to fight off attacks on independence necessitate active and powerful participation in our pluralist, competitive, federalist system of government. I also argue that what judges and court officials know about law and the justice system is imperative for our elected leaders to hear. The judicial voice is important to the creation of good public policy in so many areas of law like family, torts, criminal justice, and how businesses relate to consumers. When lawmakers pursue legal reforms, judicial officials can shed light on unintended positive and negative consequences.


Article | View PDF

Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard

In 1972, the American Bar Association adopted a Code of Judicial Conduct that it hoped would help restore public confidence in the judiciary. As part of its trust-building effort, the Code sought to instill uniformity and predictability in judicial recusal decisions. Every jurisdiction adopted the new Code’s disqualification provision, which barred a judge from presiding in any matter in which the judge’s “impartiality might reasonably be questioned.” Unfortunately, this appearance-based disqualification test has been a documented failure. It has not decreased the arbitrariness, or increased the predictability, of recusal decisions. In fact, misuse of the standard to attack the impartiality of judges on the basis of a judge’s religion, race, ethnicity, sex, or sexual orientation has actually reduced society’s faith in the judiciary. It is time to end the 40-year experiment with the unworkable, counterproductive ABA disqualification standard.

This Article proposes a new disqualification regime for trial court judges. The proposal suggests replacing the “might reasonably be questioned” test with a procedure providing for the peremptory removal of a trial judge upon the timely and perfunctory request of a party. Eighteen states currently guarantee each party the right to remove one trial-level judge without cause. After exercising the right to an automatic change of judge, a litigant could challenge the successor judge if the judge is disqualified under a statute or court rule. All jurisdictions currently identify specific situations requiring recusal. Finally, the successor judge could be challenged under the Due Process Clause when the circumstances create a serious risk of partiality on the part of the judge. A peremptory challenge system, coupled with a list of disqualifying factors, and the right to challenge a judge’s impartiality on due process grounds, will provide a superior disqualification process.

Article | View PDF

A Primer on Regulating Federal Judicial Ethics

This Article first summarizes the agencies of the federal judiciary involved in ethics regulation. Then, it describes mechanisms and policies (constitutional, statutory, and administrative) designed to deter or discourage judicial misconduct and performance-degrading disability, including but not limited to conflict-of-interest statutes and the (nonstatutory) Code of Conduct for United States Judges and controversies over its application (including whether it should apply to Supreme Court Justices in the same way it does to other federal judges). The Article next reviews constitutional, statutory, and informal methods of dealing with allegations of judicial misconduct and disability (in particular the Judicial Conduct and Disability Act). Finally, the Article briefly suggests some additional questions about the regulation machinery and steps the federal judiciary, including the Supreme Court, might take to enhance the regulation of federal judicial ethics.

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Here Today, Gone Tomorrow: “Nullifying” Lawful Permanent Resident Status

Lawful Permanent Resident (LPR) status is the status awarded to immigrants who have permission to reside permanently and work in the United States. For many, it is a stepping stone to U.S. citizenship. Section 101(a)(20) of the Immigration and Nationality Act (INA) defines LPR status as “having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”

In several instances, either through alleged fraud on the part of the immigrant or mistake on the part of the government, the government has granted an immigrant LPR status and then alleged years later that the individual, now residing in the United States under the belief that he or she is an LPR, was never in fact an LPR because of the original error. Thus, despite the fact that these individuals applied for and received LPR status through the proper channels, they have effectively had their status “nullified.”


Note | View PDF

The Sky’s the Limit: A Modern Approach to Airport Security

In today’s society, technology is always changing. In a matter of years—or maybe even months—once-prized computers and cell phones are tossed aside for the latest and greatest model. As a matter of national security, airport screening technology should also follow this trend. Although the Transportation Security Administration has made significant strides into the modern era through the use of advanced imaging technology, more remains to be done. This Note discusses the constitutional and privacy implications of modern airport screening technology and introduces laser-based molecular scanners as a solution that will strengthen national security while protecting individual privacy rights.

Note | View PDF

Failing Character and Fitness Due to Law School Debt

With law school costs climbing ever higher, current law school graduates face student debt loads that routinely top six figures. For a growing number of bar applicants in various states, the magnitude or management of this student debt is becoming a problem for purposes of the character and fitness examination required for bar admission. In extreme cases, massive student debt has alone been a reason for failing character and fitness. This Note proposes a change to the Arizona Supreme Court Rules to render student loan debt information presumptively irrelevant to a bar applicant’s character and fitness.

Law & Policy Note | View PDF

Supervisory Liability Under 42 U.S.C. § 1983 in the Wake of Iqbal and Connick: It May Be Misconceived, but It’s Not a Misnomer

The Supreme Court’s blockbuster opinion in Ashcroft v. Iqbal has been the herald of substantive change throughout several areas of law. Most recently, however, discourse regarding its effects in the context of the supervisory liability doctrine has blossomed throughout the federal appellate fora and has resulted in a circuit split. At the center of the debate is the Court’s unadorned proclamation that the term “‘supervisory liability’ is a misnomer” because “[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Adding to that debate, this Note joins a growing chorus of scholarship discussing the continued existence of supervisory liability claims in constitutional tort litigation post-Iqbal, given the Court’s subsequent decision in Connick v. Thompson.

Rather than simply mourn the current state of the legal doctrine, or rehash views on the subject that have previously been published, this Note offers a practical analysis that federal courts should adopt in favor of a pre-Iqbal understanding of supervisory liability. To that end, this Note concludes that the Court’s decision in Connick suggests that supervisory liability is anything but a “misnomer.” This, of course, is derived from Connick’s observation that a supervisor’s deliberate indifference is functionally equivalent to intentional conduct. To be certain, however, this Note establishes that equivalence independent of the Court’s discussion in Connick by looking to the Supreme Court’s previous discussions regarding 42 U.S.C. § 1983’s outer limits, the statute’s legislative history, and corresponding circuit court precedent. Through that analysis, this Note confirms that a supervisor’s deliberate indifference to their subordinate’s constitutionally tortious conduct must be redressable under § 1983.

Law & Policy Note | View PDF