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Wednesday, December 27, 2006

Canons of Professional Professorial Conduct

The Third District Appellate Court of California's Court of Appeals has just issued People v. Zackery.  Among the issues in the case is the trial court's remark that the higher court is a "kangaroo court."  Relevant piece and comments after the jump:

During the change of plea hearing . . . defendant’s counsel indicated defendant was prepared to withdraw his not guilty pleas and enter no contest pleas as to all counts.  The trial court, Judge K. Peter Saiers presiding, then asked the prosecutor, “You’re going to dismiss Count Two, aren’t you?” The prosecutor responded, “No, it’s a strike case.” To this, Judge Saiers replied, “Oh, that’s right. You can’t offend the kangaroos up there in kangaroo court.”

This was a perjorative remark.  Thus, Webster’s dictionary defines “kangaroo court” as follows: “kangaroo court n (1853) 1: a mock court in which the principles of law and justice are disregarded or perverted 2: a court characterized by irresponsible, unauthorized, or irregular status or procedures 3: judgment or punishment given outside of legal procedure.” Webster’s 11th Collegiate Dict. (2006) p. 681.) 

. . . 

The kangaroos are described as being “up there.” This implies a higher court than the trial court--higher in the sense that the “higher” court reviews the work of the trial court. As a practical matter, that leaves the Court of Appeal for the Third Appellate District and the California Supreme Court. We will give Judge Saiers the benefit of the doubt and assume he was referring to this court, not the Supreme Court.

In making his “kangaroo court” remark, on the record in open court, Judge Saiers violated Canon 1 of the Code of

Judicial Ethics, which provides as pertinent: “A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. [¶] An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.” (Cal. Code Jud. Ethics, canon 1.)

Ouch.  Still, I wonder whether we can really expect lower court judges never to express their views about the wisdom of higher court opinions.  I suppose one can argue that trial judges should at least be deferential and more civil in their expressions.  But is the integrity of the judiciary really at stake in this one judge's comments?  keep in mind that Canon 1 has never been stretched this far:   It has been applied against judges in bar fights, judges that don't recuse themselves when they should, judges that expose their employees to pornography, judges that force their secretaries to babysit, and judges that take inappropriate fees. 

Here's a related question:  Are law professors bound by some unspoken canons?  Can Con Law professors mock the highest court in the land?  Can we tell students that certain courts are effectively lawless?  Can we tell students that most of our Article III judges don't write their own opinions?  Or would these pronouncements contribute to undermining the integrity of the law?  Is our role to help the priests-in-training remain believers -- or to shake their faith?

H/T Larry Haveson

Posted by Ethan Leib on December 27, 2006 at 06:03 PM in Current Affairs | Permalink


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Tracked on Dec 27, 2006 7:50:19 PM


(1) "Kangaroos is the plural of kanagroo." But wouldn't it be cool if it was really "kangari."

(2) There is an ethical rule that might apply in the classroom. Model Rule 8.2(a) prohibits a lawyer from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” I think some comments I have heard of law professors making in class (like Ethan’s example of a prof referring to a court as “lawless”) approach this line. Putting aside the rules-type ethics questions associated with a law professor criticizing a judge during class, Ethan’s post raises a larger question. I don’t really want to start a whole big thing about whether law professors are role models, but I think they do owe some kind of duty to students and the legal profession as a whole to help instill in students an understanding that they are actually entering a profession. To me, that’s always been the best reason for a professor wearing professional attire to class (which I do) or referring to students as Mr. or Ms. (which I don’t do) – it’s a reminder that the practice of law is ultimately a serious business that should be approached with respect. Even if professors can’t or won’t actively strive to instill a sense of professionalism, they should at least do no harm when it comes to instilling a healthy respect for the legal profession and its institutions. That standard should leave plenty of room for criticism of opinions or even individual judges as well as the kind of faith shaking (“Article III judges don’t write their own opinions”) that is common (and often healthy) in the classroom. But referring to Judge X as a liar or Court Y as lawless in class crosses some kind of line for me.

Posted by: Alex Long | Dec 28, 2006 5:53:17 PM

Kangaroos is the plural of kanagroo.

Posted by: Alex | Dec 28, 2006 1:03:24 PM


In the context of deciding who should write a clerkship recommendation, I would assume the phrase "not a serious scholar" means "not a person that the judges will recognize and listen to with unusual seriousness." You want your recommenders to be big wigs that the judges know of by reputation; the idea is that they'll take such recs more seriously than someone they have never heard of.

Posted by: langdell | Dec 28, 2006 2:13:59 AM

I wrote about a somewhat related issue several years ago, during one of the recurring waves of public outcry against "liberal activist judges". My paper (of which, alas, I no longer have a copy) considered the applicability of MRPC 8.2(a) to certain statements by elected officials who were also members of the bar.

Posted by: The Continental Op | Dec 27, 2006 10:19:51 PM

To Law StudentX, I've tried to address your very interesting questions in a separate post: http://prawfsblawg.blogs.com/prawfsblawg/2006/12/thoughts_on_the.html

Posted by: Dan Markel | Dec 27, 2006 10:07:11 PM

The California opinion has severe First Amendment problems, but at least the question is close because of judges' voluntary assumption of a position in which their speech will be restricted. I hardly think that all lawyers could be made to comply with the same restrictions, though the question is an open one. (See Chemerinsky's Constitutional Law treatise at page 1121.
Professors (and everyone besides perhaps court employees) should have no comparable restraint on their freedom of expression. It is absolutely central to our job to examine critically the decisions of courts, and sometimes those decisions do not withstand the criticism. But all criticism at some level undermines the independence and the vanity of the judiciary.
Some judges say that they object only to the uninformed or harshly worded criticism. I think any such standard is utterly unmanageable and leaves far too much discretion in the hands of the regulatory body charged with enforcing it.

Posted by: Mike Dimino | Dec 27, 2006 9:34:48 PM

On the positive question, whether professors are, in fact, constrained by unspoken rules, I defer to the professors.

From a more normative standpoint, I think that law professors are not obligated to speak well of legal institutions because to force such an obligation would necessarily impede one of the primary purposes of a legal education, which is to illuminate paths to better legal institutions. Furthermore, the spirit of academic inquiry differs fundamentally from that of the enterprise of judging. Judges make decisions that directly impact peoples' liberty and livelihood, while academics participate in the creation and promotion of ideas that have, at most, an indirect effect on more tangible facets of peoples' lives. The imperative for neutrality in the judiciary is designed to safeguard the interests and rights of those who appear before the courts, and thus to uphold the court's role as a neutral agent in a perhaps politically charged climate where majority rule would fail to dispense justice. The academy also exists as an institution apart from the rest of society, but its purpose is different; it does not rely on legitimacy as an impartial decisionmaker, and so the obligations of its members should be different as well. In fact, if the academy embraces an obligation to support the establishment and its decisions (or simply to refrain from criticism), it would probably lose legitimacy in much the same way that a Supreme Court that always deferred to Congress would lose legitimacy. I'd be shocked if the arguments I made in the preceding paragraph are really even controversial in this day and age (and on a blog so frequented by law professors who probably don't want restraints on what they can say about the government).

To respond to the case mentioned in the post, I do not think that Judge Saiers really crossed a line that threatened judicial impartiality by speaking ill of a higher court. The Canon of Ethics, as I read it, commands judges to act in such a manner so as to actually preserve judicial independence/impartiality and, in so doing, preserve the image of judicial independence and impartiality. It is not intended to convey to the public an image of impartiality when, in fact, there is none. If Judge Saiers is correct that the court above him is a flock of kangaroos (do kangaroos move in flocks, or herds? Also, is "kangaroos" really the plural of "kangaroo?"), then he has perhaps taken the first step in correcting an instance where the integrity of the judiciary has been compromised. The ethical inquiry probably should take into account whether or not the judge is correct.

Perhaps a closer analogy to the People v. Zackery issue (where a judge was reprimanded for conduct toward other judges) is how professors should treat other professors, and whether the academy as an institution should enforce those norms. For example, is there a certain minimum level of civility that professors responding to each other in dueling law review articles should exhibit? If a professor is advising a favorite student about whom to approach for a letter of recommendation for a clerkship, then is that professor allowed to suggest that nobody really takes one of his colleagues' work seriously? Should professors be allowed to stand up in a lecture hall and say, "Professor X, that quack, believes that the Constitution is alive! This, of course, is idiotic."? Are there different obligations for professors on the same faculty versus professors at different schools? What about professors in different disciplines entirely? Does it matter if the criticisms are true or not?

I think the question whether professors have an obligation to each other is actually really interesting. I encountered a situation like the clerkship letter example, where a mentor discouraged me from pursuing recommendations and doing research with three other professors on the grounds that they are "not serious" scholars. At the time, self-interested, I took that recommendation at face value. But now that I reflect on it, I am beginning to wish that I had thought twice. It's not that I'm unhappy with my clerkship (far from it); instead, it's that I always heard stories about the shadowy ways that the academy polices its boundaries and regulates the production of knowledge, and at the moment I had not put two and two together to observe one of those mechanisms operating before my eyes. It was perhaps a coincidence that two of the three "not serious" scholars were people of color, but it makes me scratch my head a little bit. In retrospect, I wonder if professors ought to be so adamant about their own methodologies and preferred means of knowledge-production that they refrain from supporting colleagues who are trying something new. Again, I waver, because perhaps the outcome of my clerkship search would be different (in a bad way) if I had not sought the advice of a mentor, but maybe I would have been introduced to a different set of judges, with novel and interesting judicial philosophies. I do know that, at the end, law students tend to be terribly risk-averse, and we are likely to take the safe path if given a bit of a push from our professors. That may not be a bad thing; many people are quite thrilled with the status quo. But it certainly involves a trade off that perhaps should concern the academy if the academy is committed to the production of new knowledge and ways of knowing.

This conversation connects, obviously, to a robust, existing debate about free speech on campuses. While many discussions focus on the value of student speech, the boundaries of professors' speech raise a different, but equally interesting, set of questions. Smarter people have explored these issues, so I'll steer clear.

Posted by: LawStudentX | Dec 27, 2006 8:41:23 PM

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