Equal Justice Under Law
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1998 Lawsuit
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Guidance from Above
"When justices abuse their authority, we are all victims."

-- Daniel Levine (1998)

Squeezing Ambiguity from a Rock of Clarity

Split hairs, parsed words, and misquoted canons are not a legitimate basis for non-recusal.

Code of Conduct on "Law School Teaching"

The language adopted by the Judicial Conference of the United States is clearly intended to prevent judges who teach at a university law school from adjudicating cases in which that university is a party.
"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 V-39.

At issue are possible exceptions allowed by considerations of "size" and "cohesiveness" of the university. Apparently, if the university is large enough, and its law school independent enough, then transgressions of the law school need not reflect on the university as a whole. As demonstrated below, a small university such as Tulane does not meet this criterion.

The relationship of Tulane's Law School to Tulane University was specifically raised by Fifth Circuit Chief Judge Carolyn King:
". . .[W]hat do we know from this record
about the size and cohesiveness of Tulane University,
the degree of independence of the law school.
What do we know about that on this record?"

Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, p. 12, lines 16-19.

The Law School is an Integral Part of Tulane University

As stated in the Tulane Law School Catalog, "Tulane Law School was established in 1847, 13 years after the University of which it is a vital part." [1] (Bold emphasis added). In keeping with established tradition of university structure, Tulane University is comprised of various schools, centers, and other entities. Its schools include the School of Architecture, Business School, Faculty of Liberal Arts and Sciences (serving the undergraduate colleges), School of Medicine, School of Law, School of Engineering, Graduate School, School of Public Health and Tropical Medicine, and School of Social Work.

At Tulane, no individual school or center is an independent entity. "The governing and policy-making authority for the University is vested in a group of trustees incorporated under the title of the Administrators of the Tulane Educational Fund," whose authority flows through a hierarchy of administrators, beginning with the president of the university, and whose academic arm continues downward through a series of provosts, deans, and department heads [2].

The School of Law is located on the same campus with other schools that constitute Tulane University, and all function under a common administrative authority. All of the schools and centers on campus share the same resources for maintaining their physical plant, facilities for student services and accommodations, and libraries and other resources for scholarship and teaching. The School of Law provides a pro-rated share of representatives to the unifying University Senate, which is Tulane's highest faculty advisory body for making recommendations to the administration on university governance. All of these factors contribute to the cohesiveness of the schools that comprise the university. Finally, the salary checks for all Tulane employees derive from the Administrators of the Tulane Educational Fund through the centralized financial arm headed by Tulane's Chief Financial Officer [2].

With a total enrollment of under 12,000 students in all categories [3], Tulane University ranks as an institution of small size. That factor, plus the close physical proximity of administration buildings and most of the component schools, including the Law School, on a contiguous campus in the midst of an uptown environment, further adds to the cohesiveness of the university.

Squeezing Ambiguity from a Rock of Clarity

In her Order and Reasons, Judge Berrigan misquoted the above canon by omitting the word "educational" from the first sentence and then used the altered meaning to create an ambiguity that was absent from the original. Quoting from her Order and Reasons, and using the judge's underlining:
[T]he court is mindful of the Code of Conduct for United States Judges advice on "Law School Teaching":

§3.4-3(a)  A judge who teaches at a law school should recuse from all cases involving that institution as party. . . .

Unfortunately, this rule does not provide clear guidance either. The first sentence does not distinguish between paid and unpaid teaching positions, and it is unclear whether the first sentence's "that institution" refers only to the law school as a party. In the second sentence, "that institution" is not mentioned at all, and the university of which the law school is a party is described as such.  [Footnote: Of course, Tulane Law School has no involvement here.]

Although the second sentence of the canon states that a judge should recuse from cases involving the university as well as the law school, Judge Berrigan attempted to interpret the misquoted term, "that institution," as referring only to the law school and not the educational institution of which it is a part. Of course, were the canon intended to refer only to the law school itself, Judge Berrigan would be in compliance with the rule. However, no reasonable person would confuse what is meant in the canon by "that educational institution," when its meaning is clearly spelled out in the second sentence.

A Long History of Judicial Abuse

The unambiguous objective of the above canon is to prevent judges who are associated with a university from sitting in cases in which that university is a party. Judge Berrigan doubly violated this canon when she presided over Bernofsky's first lawsuit against Tulane University while she served on a Tulane advisory board as well as taught at Tulane's Law School. Judge Berrigan continued to defy the canon by teaching part time and then arranging with Tulane officials to accept $5,500 in payment for teaching a summer course in Greece. The Greek venue was made even more valuable by the prestige conferred on that assignment by the many U.S. Supreme Court justices who previously held it. As outlined elsewhere, U.S. Supreme Court Justice Antonin Scalia, who has also accepted Tulane University Funds to teach in Greece, disqualified himself from two recent cases involving Tulane that were brought before the Supreme Court.  Judge Berrigan should follow his example.  In the final analyis, because of her long association with Tulane University and her uncompromising loyalty toward it, Judge Berrigan should never have accepted any of the Bernofsky v. Tulane cases.


  1. Tulane Law School Catalog - History and Unique Qualities, www.law.tulane.edu (accessed 4/13/01).

  2. Organization of the University, www.tulane.edu (accessed 4/14/01).

  3. About Tulane, www2.tulane.edu (accessed 4/14/01).

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