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Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton

November 14, 2014 @ 9:00 am - 4:00 pm

The New York University Journal of Legislation and Public Policy, the Brennan Center for Justice, and the American Bar Association’s Center for Professional Responsibility are jointly hosting a Symposium on Friday, November 14th, 2014 entitled “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.”

The 2009 Supreme Court decision in Caperton v. A. T. Massey Coal Co. held that a litigant’s due process rights can be violated when an elected judge refuses recusal in a case in which that judge received significant campaign support from a litigant. The majority emphasized that Caperton was an extreme case, urging states to adopt recusal rules more stringent than the minimum necessary to protect due process. The dissent warned that “the cure was worse than the disease,” predicting a flood of recusal motions would swamp state courts following the decision.

The Symposium will look at the state of affairs five years after Caperton. We will examine the effects of Caperton in the courtroom, evaluate the current state of judicial recusal reform, and discuss the issue of judicial partiality and recusal beyond the context of campaign spending. The Symposium will consist of three panels focusing on different areas of the Caperton decision and issues of bias and recusal, and a lunch roundtable during which several judges will discuss judicial perspectives on those issues.  The topics for the panels and the roundtable are described in greater detail below.

Panel 1: “Caperton and the Courts: Did the Floodgates Open?”  This panel will explore the effects of Caperton within the courtroom and why the dissent’s fear of extreme and intense litigation over recusal did not come to pass.  The panel will consider the importance of the “extreme facts” identified by the Caperton majority in efforts to use recusal as a tool to mitigate the continued rise in judicial campaign spending, and whether Caperton’s analysis of the probability of bias based on campaign support can be reconciled with Citizens United, McCutcheon, and other Supreme Court cases addressing campaign spending and corruption.

Moderated by: Adam Liptak, Supreme Court Correspondent, New York Times
James SampleAssociate Professor of Law, Hofstra School of Law; Former Counsel, Brennan Center for Justice
Brad SmithJosiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former Chairman, Federal Election Commission
Keith SwisherAssociate Professor of Law, Arizona Summit Law School

Panel 2:  “The State of Recusal Reform.”  This panel will focus on the efforts at the state level and in the ABA to produce new standards for judicial recusal.  After Caperton, the ABA has not reached consensus on an updated model rule addressing recusal standards and campaign support, while some states have taken the initiative to implement new recusal regimes.  How successful have the efforts proven, and what are the prospects for additional recusal reform?

Moderated by: Charles GeyhReporter, ABA Commission to Evaluate the Model Code of Judicial Conduct; John F. Kimberly Professor of Law, Maurer School of Law, Indiana University at Bloomington
Robert PeckPresident, Center for Constitutional Litigation
Myles LynkPeter Kiewit Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University; Incoming Chairman, ABA Standing Committee on Ethics and Professional Responsibility
The Honorable Toni ClarkeAssociate Judge, Seventh Judicial Circuit, Circuit Court for Prince George’s County, Maryland

Judicial Lunch:  “A View From the Bench.”  Recusal rules vary widely between the states, which affects the experience of elected judges and perceptions of the judiciary across jurisdictions.  This interactive lunch panel will feature judges with experience in a variety of recusal regimes.  The panel’s focus will be judicial perspectives on the Caperton decision, its effects, and recusal reform.

Moderated by: Barbara GillersAdjunct Professor of Law, New York University School of Law
The Honorable Jonathan LippmanChief Judge, New York State Court of Appeals
The Honorable Sue Bell CobbFormer Chief Justice, Alabama Supreme Court
The Honorable Maureen O’ConnorChief Justice, Ohio Supreme Court
The Honorable Louis ButlerFormer Justice, Wisconsin Supreme Court

Panel 3:  “Caperton’s Next Generation: Beyond the Bank.”  Caperton drew attention to the issue of potential judicial bias and partiality. This panel will explore how we identify sources of bias and discuss the prevalence of motions for judicial recusal for reasons that cannot be reduced to the passing of money from hand to hand.  Is it possible to identify sources of bias and craft meaningful and workable standards to mitigate them?  May allegations of bias sometimes represent efforts to intimidate decision-makers?

Moderated by: Jed ShugermanProfessor, Fordham University School of Law
Debra Lynn BassettJustice Marshall F. McComb Professor of Law, Southwestern Law School
Gregory ParksAssistant Professor of Law, Wake Forest University School of Law
Dmitry BamAssociate Professor of Law, University of Maine Law School

Contact: Senior Symposium Editor


November 14, 2014
9:00 am - 4:00 pm
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Brennan Center for Justice


Greenberg Lounge, Vanderbilt Hall, NYU School of Law
40 Washington Square South
New York City, NY 10012 United States
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