School of Law_Dean Update_March 17, 2020

Email update from Dmitry Bam, Interim Dean and Professor of Law, University of Maine School of Law regarding COVID-19

Remarks: Caperton\u27s Next Generation -- Beyond the Bank

On November 14, 2014, a symposium entitled, Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton, was held at New York University. The symposium was sponsored by the Brennan Center for Justice, the American Bar Association\u27s Center for Professional Responsibility, and NYU\u27s Journal of Legislation and Public Policy. This document contains the transcript starting from Dmitry Bam\u27s remarks from one of the four panels, and is entitled Caperton\u27s Next Generation: Beyond the Bank. The panel members included Professors Jed Shugerman, Debra Lyn Bassett, Gregory S. Parks, Dmitry Bam, and Rex Perschbacher

Judicial Partisanship in a Partisan Era: A Reply to Professor Robertson

Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and others have called for constitutional issues to be taken away from the Court. The recent spate of 5–4 decisions upholding President Trump’s immigration policies will further convince many people that Supreme Court justices are nothing more than politicians in robes

School of Law_Dean Update_March 13, 2020

Email update from Dmitry Bam, Interim Dean and Professor of Law, University of Maine School of Law regarding COVID-19

Making Appearances Matter: Recusal and the Appearance of Bias

In the United States, judges are required to recuse themselves - that is, remove themselves from participating in a case - not only when they are biased, but even when they may appear biased to a neutral observer. This nominally strict, appearance-based recusal standard is intended to ensure the judge’s impartiality in resolving disputes, to protect the judiciary’s reputation, and to instill public confidence in the fairness of the courts. It has long been assumed that so long as the judge makes the correct recusal decision, the appearance of impartiality is restored and the reputation of the judiciary is protected. This Article challenges that long-standing assumption and argues that the focus on appearances only at the time of the recusal decision, when the public has already formed its impressions of judicial impartiality, may not fully restore public confidence and protect the reputation of the judiciary. In other words, a judge’s recusal decision may be too little and come too late. Moreover, when appearances are considered on a case-by-case basis, often by the very judge whose impartiality has been challenged, even the correct nonrecusal decision does not always foster an appearance of impartiality. Most of the literature on recusal focuses on the recusal standard and the reasons why judges might, intentionally or unintentionally, reach the incorrect recusal decision, and seeks solutions to that problem. In this Article, I propose a new role that appearances should play in American recusal jurisprudence, and a new approach to judicial recusal. I argue that rather than allowing individual judges to consider appearances ex post (i.e., in the context of individual cases), legislators must consider appearances ex ante to prevent the damage to the judiciary from arising in the first instance. This means that legislators must regulate judicial selection (including judicial elections) and judicial conduct, as well as extrajudicial conduct, with an eye towards potential future recusal. To that end, legislatures should create ethical rules and regulations designed to eliminate any appearance of impartiality from arising. And, to the extent that recusal cannot be avoided by such ex ante regulation, legislatures must also consider appearances ex ante in creating and implementing new recusal procedures

Tailored Judicial Selection

American states have experimented with different methods of judicial selection for two centuries, creating uniquely American models of selection, like judicial elections, rarely used throughout the rest of the world. But despite the wide range of selection methods in existence throughout the nation, neither the American people nor legal scholars have given much thought to tailoring the selection method to particular levels of the judiciary. To the contrary, the most common approach to judicial selection in the United States is what I call a unilocular, “a judge is a judge,” approach. For most of our nation’s history, all judges within a jurisdiction have been chosen the same way. Proponents of this view see judges at all levels of the judiciary — trial, intermediate appellate, and courts of last resort — as a homogenous group, at least when it comes to how we choose them. Our federal judiciary exemplifies this approach. All Article III judges are appointed by the president and confirmed by the senate. All of them serve for life. We have adopted this unilocular system even though the work of a judge in, say, the Western District of Arkansas is very different from the work of a Justice of the U.S. Supreme Court. Most states have taken a similar tack, with approximately forty states using a uniform selection method for all levels of their state courts. For example, in fourteen states all judges are appointed by the governor from a list submitted by a judicial nominating commission. Another fourteen use nonpartisan elections for all their judges. Eight more use partisan elections for all their judges. All in all, once a state chooses a selection and retention method for its judges, it adopts that approach for the whole judiciary. But it does not have to be this way. In this article, I will suggest that we should at least consider tailoring the judicial selection method to different levels of the judiciary. After all, judges are not a monolithic, homogenous group, and the work of a trial judge differs significantly from the work of an appellate judge. I will show that different selection methods may be appropriate for trial judges than for appellate judges. What I call “tailored judicial selection” can help address some of the concerns raised by the proponents and the opponents of various methods of judicial selection

School of Law_Dean Update_March 11, 2020

Email update from Dmitry Bam, Interim Dean and Professor of Law, University of Maine School of Law regarding COVID-19

Restoring the Civil Jury in a World without Trials

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed. This Article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation