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"There Ought To Be a Law. . ."
The following letter was sent to the 37 members of the House Committee on the Judiciary (106th Congress), Henry J. Hyde, Chairman (ref: www.house.gov/judiciary)

January 26, 2000

Dear Member of the House Judiciary Committee:

The Judicial Conference of the United States intends to keep judges who are associated with a university from sitting in cases in which that university is a party. This is clearly expressed in the following canon:

"A judge who teaches at a law school should recuse from all cases involving that educational institution as party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case, and related factors. Similar factors govern recusal of judges serving on a university advisory board." Guide to Judiciary Policies and Procedures, 1999 Ed., Vol. II, Chap. V, §3.4-3(a), at p. V-39.

The canons in the Guide are only advisory, and no penalties are associated with their violation. At least one determined judge who both taught at a university law school and served on an advisory board would not recuse and could not be prevented from adjudicating cases brought against that university. Such behavior creates the need for an explicit law that prohibits this type of judicial abuse, whose prevalence may be appreciable.

I propose a simple addition to the existing recusal statute that will close a loophole that is tacitly, and unfairly, given to universities. As quoted in its entirety in the enclosed statute, the amendment modifies United States Code, Title 28, Section 455(b) by introducing a new item, §455(b)(5)(v), that adds the words: "Serves as an instructor at an educational institution that is a party in a proceeding or serves on an advisory board of that institution."

I strongly urge you to sponsor or support this legislation. It will make the recusal statute conform to the intent of the Judicial Conference and help insure the goal of equal justice under the law that the public expects from the legal system.

Yours truly,

Carl Bernofsky

Carl Bernofsky
Former Research Professor (1975-1995)
Tulane University School of Medicine

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Web site created November, 1998     This section last modified September, 2001
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