62 Pages Posted: 29 Jun 2016 Last revised: 29 Sep 2016
Date Written: 2016
Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done — not to mention little that could be done — to restrict judges from lobbying.
Judicial lobbying occurs, in large part, when Congress proposes jurisdictional changes: judges lobby when the scope of their review may change. Yet, jurisdictional issues raise concerns about the judiciary’s biases when it comes to lobbying. To further explore this point, this Article explores the case of specialized courts’ involvement in legislative lobbying efforts. Specialized courts have more opportunities to lobby Congress on jurisdiction because any legislative change to the subject matter under the specialized court’s purview is likely to alter the court’s jurisdiction.
This Article argues that in certain instances lobbying by specialized judges ought to be curtailed. Lobbying by specialized courts raises unique issues that may not be present when judges on generalized courts lobby. Namely, specialized court lobbying may sacrifice long-held judicial virtues, including due process and impartiality, virtues which are fundamental to the legitimacy of the judiciary. This Article examines potential solutions to check such lobbying, and offers a partial solution that leverages the wisdom of the judicial branch, as a whole, to minimize those concerns.
Keywords: patent law, judicial role, bankruptcy, federal courts
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