2008 Tradeoffs Of Candor: Does Judicial Transparency Erode Legitimacy?

Held: Tuesday, March 11, 2008, 9:00 a.m. – 4:00 p.m., Vanderbilt Hall Greenberg Lounge 40 Washington Square South New York, New York 10012

Entitled “Tradeoffs of Candor: Does Judicial Transparency Erode Legitimacy?” the symposium explored the tensions between judicial independence and democratic transparency. Professor Jeremy Waldron, a renowned jurisprudential scholar, offered the keynote address, followed by three panel discussions treating judicial election and confirmation proceedings, judicial activity outside the courthouse, and stare decisis in judicial decisions. A range of esteemed scholars, practitioners, and members of the bench signed on to participate, including Thomas Phillips (former Chief Justice of the Texas Supreme Court) and Judge Nancy Gertner (United States District Court, District of Massachusetts).

Please keep posted for the the Annual Survey’s “Tradeoffs of Candor” Symposium Issue, containing full length articles inspired by the conference and panelist remarks, with an expected publication date of late Fall 2008.

Panel One: Transparency and the Selection of Judges
Judges and scholars have noted the increasingly partisan and vituperative confirmation hearings for federal court judges, calls for impeachment of federal judges and recall of state court judges, and increasingly expensive and interest-party-driven candidacies of state court judges, each suggesting that citizens at least recognize the political impact of judicial decisions. Indeed, perhaps citizens deserve to have a full and complete picture of the positions judicial candidates take on key issues that may come before them, just as in any other elected official of any branch of government. This panel explored the impact that such increased demands for transparency and candor in prospective judges has on the independence and impartiality of the judiciary as a whole.

Thomas Phillips (Retired Chief Justice of the Supreme Court of Texas, Baker Botts)
Prof. Jonathan Nash (Tulane)
Prof. Rafael Pardo (Seattle)

Moderator: Prof. Stephen Gillers (NYU)

Panel Two: Transparency Outside the Courthouse
Issued by the A.B.A. in February of 2007, Model Code of Judicial Conduct Rule 2.10(E) gives judges the option for the first time to respond to public criticism of their conduct in a matter. On its face, it encourages transparency and accessibility, permitting judges to clarify and defend their opinions to a broader, nonlegal audience via the mainstream media. The Symposium’s second panel discussed the prudence and implications of this new rule in light of concerns for the role of the media, judicial transparency, and the rule of law.

Judge Nancy Gertner (U.S. District Court, District of Massachusetts)
Mark Harrison, Esq. (Osborn Maledon)
Anthony DeStefano, Esq. (Newsday)

Moderator: Prof. Bruce Green (Fordham)

Panel Three: Transparency and Stare Decisis
A number of recent Supreme Court decisions have drawn accusations that justices have effected sweeping changes in the law without admitting that they were doing anything of great consequence. This panel weighed the costs and benefits of disguising stark departures from precedent as innocuous, narrow rulings. Is this practice a form of casuistry that lets judges conceal unjustifiable violations of settled law? Or does it represent a sensible way for courts to get the best of both worlds by reaching a normatively correct outcome without undergoing the sacrifice of credibility that accompanies any overruling of precedent?

Stephen Shapiro, Esq. (ACLU)
Prof. Gillian Metzger (Columbia)
Prof. Michael Gerhardt (University of North Carolina)

Moderator: Prof. Cristina Rodriguez (NYU)


Speaker Biographies


Jeremy Waldron, NYU School of Law

Professor Waldron is University Professor at New York University School of Law and teaches legal and political philosophy. Professor Waldron has written and published extensively in jurisprudence and political theory. His books and articles on theories of rights, on constitutionalism, on democracy, property, torture, and homelessness are well known, as is his work in historical political theory. Professor Waldron gave the second series of Seeley Lectures at Cambridge University in 1996, the 1999 Carlyle Lectures at Oxford University, the Spring 2000 University Lecture at Columbia, the Wesson Lectures at Stanford in 2004, and the Storrs Lectures at Yale Law School in 2007. He travels widely and has delivered public lectures all over the world, from Buenos Aires to Jerusalem. He was elected to the American Academy of Arts and Sciences in 1998.

He was born and educated in New Zealand, where he studied for degrees in philosophy and in law at the University of Otago. He was admitted as a Barrister and Solicitor of the Supreme Court of New Zealand in 1978. He studied at Oxford for his doctorate in legal philosophy, and taught at Oxford University as a Fellow of Lincoln College from 1980-82. From 1982-1987, he taught political theory at the University of Edinburgh, and from 1987-1995, he was a Professor of Law in the Jurisprudence and Social Policy Program in the School of Law (Boalt Hall) at the University of California, Berkeley. He was briefly at Princeton, as Laurance S. Rockefeller University Professor of Politics, before moving to New York in 1997. He was previously University Professor in the School of Law at Columbia University.

Panel One

Stephen Gillers, NYU School of Law

Stephen Gillers has been Professor of Law at the New York University School of Law since 1978 and Vice Dean from 1999-2004. Professor Gillers has written widely on legal and judicial ethics in law reviews and the legal and popular press. He has taught legal ethics as a visitor at other law schools and has spoken on lawyer regulatory issues in the U.S. and abroad – often for legal ethics CLE credit – including at federal and state judicial conferences, law firms and general counsel’s offices, ABA meetings, state bar meetings nationwide, before Congress, and in law school lectureships. Professor Gillers is the author of Regulation of Lawyers: Problems of Law and Ethics , a widely used law school casebook first published by Little, Brown, now Aspen, in 1985 and currently in its seventh edition. He is currently chair of the American Bar Association’s Policy Implementation Committee of the ABA’s Center for Professional Responsibility.

Thomas Phillips, Baker Botts LLP

Thomas R. Phillips is a partner in the Austin office of Baker Botts L.L.P., concentrating in general litigation, including appellate, trial strategy, and alternate dispute resolution. From 1981 to 1988, he served as judge of the 280th District Court in Harris County, Texas. In 1988, Governor William P. Clements appointed Phillips Chief Justice of the Supreme Court of Texas, a position to which he was elected and re-elected in 1988, 1990, 1996, and 2002. He retired as Chief Justice of the Supreme Court of Texas after seventeen years of service in 2004, after which he held a one-year appointment as the Spurgeon E. Bell Distinguished Visiting Professorship at the South Texas College of Law in and a one-semester appointment as Distinguished Visiting Professor at the Dedman School of Law at Southern Methodist University in Dallas.

Phillips’ peers elected him president of the Conference of Chief Justices in 1997-98, during which time he also chaired the Board of Directors of the National Center for State Courts. He served on the Carter-Baker Commission on Federal Election Reform in 2005 and is a member of the Texas Historical Commission. In 2005, Phillips was awarded the National Center for State Courts’ Harry L. Carrico Award for Judicial Innovation. Last year, he received Baylor University’s Price Daniel Distinguished Public Service Award. A native of Dallas, Phillips earned a B.A. from Baylor University in 1971 and a J.D. from Harvard Law School in 1974.

Jonathan Nash, Tulane Law
“Judicial Election versus Judicial Appointment: Evaluating the Potential for a Race to the Bottom”

Jonathan Nash is the Robert C. Cudd Professor of Environmental Law at Tulane Law School, and a Visiting Professor at the University of Chicago Law School for the 2007-2008 academic year. Professor Nash researches and teaches in the fields of environmental law, property, law and economics, and civil procedure. He obtained his LL.M. from Harvard Law School and his J.D. magna cum laude from New York University School of Law. He graduated summa cum laude from Columbia College where he obtained a B.A. in mathematics. Professor Nash served as law clerk to the Honorable Donald Stuart Russell of the U.S. Court of Appeals for the Fourth Circuit and to the Honorable Nina Gershon, then-Chief Magistrate Judge of the U.S. District Court for the Southern District of New York.

Prior to joining the Tulane Law faculty, he was a Research Fellow at the New York University Center on Environmental and Land Use Law and a Harry A. Bigelow Fellow and Lecturer in Law at the University of Chicago Law School. Professor Nash has published in leading law journals, including the Columbia Law Review, Cornell Law Review, Northwestern University Law Review, Notre Dame Law Review, Southern California Law Review, Stanford Law Review, Washington and Lee Law Review, Ecology Law Quarterly, and the Harvard Environmental Law Review.

Rafael Pardo, Seattle Law
“Costs and Benefits of Opacity in Judicial Selection Processes: The Case of Bankruptcy Judges”

Rafael Pardo is an Associate Professor at Seattle University School of Law, which he joined in 2006 after having been an Associate Professor of Law at Tulane Law School from 2003 to 2006. Professor Pardo teaches in the fields of bankruptcy, commercial law, and contracts. Much of his research explores the relationship between educational debt and financial distress, particularly within the bankruptcy system. His recent research has also analyzed bankruptcy courts and their institutional role in the federal judicial system.

Professor Pardo received his J.D. from New York University School of Law, where he served as Executive Editor of the New York University Law Review and was a recipient of the Judge John J. Galgay Fellowship in bankruptcy. Professor Pardo currently sits on the board of trustees of the Consumer Education and Training Services (CENTS), a nonprofit organization dedicated to providing a variety of resources to the Seattle community on matters of money management, consumer credit personal finances, and financial literacy. He also serves as a member of the AALS Creditors’ and Debtors’ Rights Section Board.

Panel Two

Bruce Green, Fordham Law

Bruce Green is the Louis Stein Professor of Law and Director of the Stein Center for Law and Ethics at Fordham University School of Law. Professor Green has written extensively on legal ethics, focusing both on practitioners generally and prosecutors specifically. He served as the Reporter for the American Bar Association Task Force on the Attorney-Client Privilege, and as a Member of the National Conference of Bar Examiners’ MPRE Drafting Committee. Prior to joining the faculty at Fordham, Professor Green worked in the Office of the United States Attorney for the Southern District of New York, and as a law clerk for Justice Thurgood Marshall in the United States Supreme Court. He received his J.D. from Columbia University School of Law in 2001, and his A.B., summa cum laude, from Princeton University in 1978.

Mark Harrison, Osborn Maledon P.A.

Mark I. Harrison received his LL.B. from Harvard Law School in 1960 and is currently a Member of the Phoenix, Arizona law firm Osborn Maledon PA. He is a past President of the State Bar of Arizona (1975-76) and the Arizona Bar Foundation (1991). Mr. Harrison was a member of the Arizona Supreme Court Special Committees on Lawyer Discipline and on the Model Rules of Professional Conduct. He served on the Members’ Consultative Group for the American Law Institute Restatement of the Law Governing Lawyers and was the President of the Association of Professional Responsibility Lawyers (APRL) in 1992-93 and of the American Academy of Appellate Lawyers in 1993-94.

From 2000-2003, Mr. Harrison served as a member of the ABA Standing Committee on Ethics. From 2003 until 2007, Mr. Harrison chaired the ABA Joint Commission to Evaluate the Code of Judicial Conduct. Mr. Harrison has taught the required course in legal ethics at the University of Arizona Law School and is currently an adjunct professor teaching legal ethics at Arizona State University School of Law. Mr. Harrison has been the recipient of several awards including the ABA Michael Franck Award for Professional Responsibility; the Walter E. Craig Lifetime Achievement Award from the State Bar of Arizona and the Judge Learned Hand Award from the Phoenix chapter of the American Jewish Committee, presented annually to outstanding leaders of the legal profession.

Anthony DeStefano, Newsday

Anthony M. DeStefano, Esq. is a special writer for Newsday at its New York City edition. He specializes in criminal justice and legal affairs and works at the newspaper’s federal court bureau in Brooklyn, N.Y. Since joining Newsday in 1986, Mr. DeStefano has written extensively about organized crime, the changing face of New York City through immigration and developments in criminal law. In 1992, Mr. DeStefano was part of a team of Newsday reporters who won the Pulitzer Prize for spot news reporting in the coverage of the Union Square subway crash in Manhattan.

Mr. DeStefano is the author of The Last Godfather: Joseph Massino and The Fall of The Bonanno Crime Family (Kensington, 2006) and The War on Human Trafficking: U.S. Policy Assessed (Rutgers University Press, 2007). He also contributed to Human Smuggling: Chinese Migrant Trafficking and The Challenge To America’s Immigration Tradition, edited by Paul Smith (The Center For Strategic and International Studies, 1997). Mr. DeStefano received a Bachelor of Science degree in 1968 from Ithaca College, Ithaca, N.Y.; a Master of Arts degree in 1976 from Michigan State University in communications; a Juris Doctor degree in 1979 from New York Law School. He was admitted to the New York State bar in 1981.

Judge Nancy Gertner, U.S. District Court, Massachusetts

Judge Nancy Gertner was nominated to a seat on the bench in United States District Court, District of Massachusetts by President Clinton, and received her commission in 1994. She has been a visiting professor at Harvard, a visiting lecturer at Yale, and an instructor at both Boston University and Boston College Law School. Judge Gertner received her B.A from Barnard, and an M.A. and J.D. from Yale.
Panel Three

Cristina Rodriguez, NYU School of Law

Cristina Rodríguez joined the faculty as Assistant Professor of Law in 2004 and became Associate Professor of Law in 2007. She recently completed a series of pieces concerning language rights and language policy in the United States and around the world. In Language and Participation, she tackles the question of whether growing multilingualism in the United States imperils the future of American democracy. She offers a theory of multilingualism that emphasizes its relationship to participation in democratic and social institutions. Currently, she is working on a series of papers grappling with how the constitutional and statutory law governing immigration contributes to the management of the processes of integration and social change implicated by large-scale immigration.

Before coming to the Law School, Rodríguez served as a law clerk to Justice Sandra Day O’Connor, of the U.S. Supreme Court, and to Judge David S. Tatel, of the U.S. Court of Appeals for the D.C. Circuit. She earned her B.A. in history from Yale College in 1995. She then attended Oxford University as a Rhodes Scholar, where she received a Master of Letters in Modern History in 1998. In 2000, Rodríguez received her J.D. from Yale Law School, where she served as an Articles Editor for the Yale Law Journal and won the Benjamin Sharps Prize for the best paper by a third-year student.

Steve Shapiro, ACLU
“The Value of Judicial Candor”

Steven R. Shapiro is the Legal Director of the American Civil Liberties Union, the nation’s oldest and largest civil liberties organization. He directs a staff of approximately 90 full-time lawyers who maintain a large and active docket of civil liberties cases around the country. Shapiro has been the ACLU’s Legal Director since 1993, and served as Associate Legal Director from 1987-1993. During that time, he has appeared as counsel or co-counsel on more than 200 ACLU briefs submitted to the United States Supreme Court. Shapiro is also an adjunct professor of constitutional law at Columbia Law School, and a frequent speaker and writer on civil liberties issues. He is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Michael Gerhardt, University of North Carolina

Michael Gerhardt is Samuel Ashe Distinguished Professor of Constitutional Law and Director of the UNC Center on Law and Government at the University of North Carolina Law School. He is the author of several books, including The Power of Precedent (Oxford University Press, 2008), and the second editions of The Federal Impeachment Process: A Constitutional and Historical Analysis (University of Chicago Press) and The Federal Appointments Process (Duke University Press). He is the co-author of each of the three editions of a reader on constitutional theory, and has written more than fifty law review articles on different topics in constitutional law, federal jurisdiction, and the legislative process. Professor Gerhardt has consulted with members of Congress on a number of constitutional issues, and has testified several times before Congress, including as the only joint witness in the House Judiciary Committee’s special hearing on the history of the federal impeachment process held just before the historic vote by the House of Representatives to impeach President Clinton. More recently, Professor Gerhardt defended the constitutionality of the filibuster before the Senate Rules and Judiciary Committees, and he testified before the House Judiciary Committee in opposition to several proposed court-stripping measures. In addition, he served as a special consultant to the National Commission on Judicial Discipline and Removal and to the Presidential Transition in 1992-93 and to the White House on the nomination of Stephen Breyer to the United States Supreme Court.

His honors include distinguished lectures at Princeton University and William & Mary, Drake, Creighton, Cleveland State, and University of Montana Law Schools. In 2004, Professor Gerhardt served as a visiting fellow in the James Madison Program in American Institutions and Ideals at Princeton University. Professor Gerhardt has previously taught at William & Mary Law School and been a visiting professor at Cornell and Duke Law Schools. He received his B.A. from Yale University, his M.Sc. from the London School of Economics, and his J.D. from the University of Chicago.

Gillian Metzger, Columbia

Professor Gillian Metzger joined the Columbia law faculty in 2001. She teaches constitutional and administrative law, as well as a seminar on federalism. Her publications include: with Peter L. Strauss, Todd D. Rakoff, and Cynthia R. Farina, Gellhorn and Byse’s Administrative Law: Cases and Commentaries (Foundation Press; joined as editor 2007) Congress, Article IV, and Interstate Relations , 120 Harv. L. Rev. 1468 (2007), Facial Challenges and Federalism , 105 Colum. L. Rev. 873 (2005), and Privatization As Delegation , 103 Colum. L. Rev. 1367 (2003).

Prior to coming to Columbia, Professor Metzger served as a law clerk to Justice Ruth Bader Ginsburg of the U.S. Supreme Court and Judge Patricia M. Wald of the U.S. Court of Appeals for the District of Columbia Circuit. She also worked as an attorney in the Democracy Program at the Brennan Center for Justice at NYU School of Law, where she was instrumental in bringing litigation challenging Florida’s permanent disenfranchisement of felons and assisted in efforts to defend campaign finance reform measures. Professor Metzger received her J.D. from Columbia in 1995, where she was executive articles editor of the Law Review, and also has a B.Phil. (masters) in philosophy from Oxford. She received her B.A. from Yale in 1987.