Faculty Notes

Prof. James Sample Quoted in The National Law Journal and Charleston (W.Va.) Gazette-Mail

James Sample , Professor of Law

Supreme Court Reform Group Urges ‘Blind Trusts’ for Justices
By Tony Mauro, Supreme Court Brief
The National Law Journal
July 22, 2015


Some ethics experts are not sure that requiring justices to recuse in the case of an amicus “conflict” is a good idea.

Hofstra University Maurice A. Deane School of Law professor James J. Sample, who has written extensively about judicial recusals, acknowledged there may be cases where an amicus connection could lead the public to think there is a conflict of interest.

“Appearances are real, and the justices should be concerned about appearances,” Sample said.

But he said a rule requiring such recusals could be “extremely dangerous — overinclusive and potentially chilling.” With the sharp increase in the number of amicus briefs in the Supreme Court in recent years, Sample said, the number of recusals might also multiply if justices were required to step aside because of a company’s amicus participation.

Recused justices cannot be replaced by anyone else — unlike in lower federal or state courts, where other judges can fill in. The increase in recusals could “run the risk of decreasing the input of some important voices,” Sample said. “Each individual justice is a finite resource.”

Another concern has to do with the interchangeable nature of amicus groups, Sample said.

If the direct parties trigger a justices’ recusal, that cannot be helped, because they are the actual antagonists in the dispute before the court. But the inclusion of one amicus company or another on a brief is more optional, making it possible to “game the system.”

If a justice, for example, owned Google Inc. stock, and was required to recuse in a case in which Google filed an amicus brief, lawyers could invite Google to participate in an amicus brief for strategic reasons—namely, to force the recusal of a justice who might vote the wrong way.

“Adding Google to the list is not that difficult,” Sample said.

Read the full article (subscription required).

A case of retaliation by W.Va. high court justice?
Charleston Gazette-Mail
July 17, 2015


Her [Supreme Court Justice Robin Davis] decision to remain on the case raised eyebrows, but it is her referral of the defense attorney to the disciplinary board that raises questions about whether her behavior was retaliatory — and whether it sends a chilling message of intimidation to other attorneys practicing before the court.

“I just find it astonishing,” James Sample, a Hofstra University judicial ethics expert, told ABC News. “To threaten the attorney, and implicitly to threaten attorneys generally who might question her on recusal grounds, is really an abuse of the position.”

Read the full editorial.