Judicial Disqualification in the Aftermath of Caperton v. A.T. Massey Coal Co.

Abstract:     
Does Due Process require a judge to disqualify himself if an individual spent independent funds to buy ads that criticized the judge's opponent in a judicial election? The Supreme Court said yes (5 to 4) in the Caperton decision, and thus has created more uncertainty in the law. Does it matter if the person who paid for the independent ads was not a lawyer or a party but was only an employee of the party? And, does it matter if that employee's financial interest in the law suit (if one were to pierce the corporate veil) is minor – substantially less than he spent on the ads? The Court appeared to say no. The majority referred to "independent expenditures," and then repeatedly called them "contributions," thus confusing a distinction that it has regarded as crucial in all other campaign finance cases. The majority required the judge to disqualify himself, but did not weigh the disadvantanges of a vague rule that introduces transaction costs in the form of uncertainy – an uncertainty that is inevitable when the Court created a "totality of circumstances" rule that will keep lawyers busy for years.

Number of Pages in PDF File: 33

Keywords: Judicial Ethics, Judicial Elections, Disqualification, Recusal, Due Process, Constitutional Law, Campaign Finance, Campaign Contributions, Campaign Expenditures, Appearance of Impropriety, Legal Ethics, Professional Responsibility

JEL Classification: D60, D61, D63, D72, D80, K19, K41, K42

Accepted Paper Series