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S. 1638 and the fight for judicial education

An amendment to the federal judicial pay raise bill (S.1638), proposed by Senator Feingold (D., Wis.), is said to be prompted by a desire to ban junkets for judges. Instead it does exactly the opposite. It bans educational programs for judges while permitting them to attend junkets.

Section 5(a)(2) of the amendment would prevent judges from accepting reimbursement from a law school for attending a program, "a significant purpose of which is the education of United States Federal or state judges." Should a law school invite judges to a weekend golf tournament, no problem. But let them hear a lecture on the Founders or on John Locke, and the amendment would ban reimbursement. Junkets are fine. It's education that appears to bother Senator Feingold.

And just what kind of education upsets Senator Feingold? The bill is drafted narrowly to exclude programs with which the Senator is likely to agree. Judges would be permitted to attend Aspen Institute programs, for example, since they would be a minority of attendees. Programs sponsored by American Lawyers for Justice (formerly ATLA) would arguably be permitted, since that special interest group would seem to be a "subject matter bar association." ABA programs are also permitted. So too are university programs such as the Harvard Law and Society program for judges, because they are held under the auspices of the Federal Judicial Center.

What that leaves, as the principal object of Senator Feingold's wrath, is essentially one thing: the George Mason Law & Economics Center, an integral part of George Mason School of Law, where I have the honor to be a faculty member. Since the LEC's inception in 1974, its programs have always been rigorous and taught by the finest scholars. For a five-day program, participants are required to read and discuss 500-600 pages of material, with 21 hours of seminars. There are no entertainment events, and no reimbursement of expenses is offered for spouses. Presentations are academic and theoretical, and lecturers assiduously avoid discussing "hot" topics such as asbestosis, abortion and affirmative action (even though there is much to say about each of these!). Recent programs examined The Idea of America, Skepticism, and Economics. No participant has ever found George Mason programs to be slanted, and no one has ever found fault with our readings, which are posted on the George Mason School of Law web site for all to see. Check them out. I have taught at these programs and can personally vouch that judges, equally representing both major political parties, are united in praising their high quality.

Our programs are held at comfortable hotels, but not at the Ritz. For our six-night programs, total travel, food and hotel reimbursement amounts to between $2500 and $2700. Our programs thus run afoul of Section 5(a)(1) of the amendment, which carefully caps reimbursement at $2,000 per event. $2000 is, to be sure, a generous figure for a one- or two-day event; but if the program seeks to get participants over the intellectual hurdle of a novel field, this requires a lengthier program which bumps into Sen. Feingold's cap. The monetary ceiling therefore interferes with truly educational programs, while permitting programs on less rigorous materials more easily handled in a day.

More than 4000 judges, including about 40% of the entire Federal bench, have attended a George Mason program or one where we supplied academic content. The content of our programs is determined solely by law school academics. The programs are supported by about 180 donors. Corporate sponsorship amounts to less than 10 percent of the budget.

George Mason programs are a valuable service in the public interest. The Code of Conduct Committee of the Federal Bench has noted that "[t]he education of judges in various academic and law-related disciplines serves the public interest" (Advisory Opinion 67). This policy was reiterated by the Federal Judicial Conference in September 2006. The conference "recognizes that judges need to enhance their understanding of law, science, history, economics, sociology, philosophy, and other disciplines.... Without such knowledge of the world around them, judges would be ill-prepared to make informed and fair decisions."

Quite apart from our programs, the Feingold amendment would also make it difficult for other law schools to offer programs for judges. One cannot say what such programs would look like; but we would welcome the competition.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.