JUDICIAL TRANSPARENCY AND THE RULE OF LAW 23rd Annual Forum for State Appellate Court Judges Forum Endowed by Habush Habush & Rottier S.C. JUDICIAL TRANSPARENCY AND THE RULE OF LAW JUDICIAL TRANSPARENCY AND THE RULE OF LAW 23rd Annual Forum for State Appellate Court Judges Forum Endowed by Habush Habush & Rottier S.C. When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 777 Sixth Street, NW, Suite 200 Washington, D.C. 20001 www.poundinstitute.org [email protected] The Endower, Habush Habush & Rottier S.C., and the Forum underwriters have no control over the content of the Forum, the makeup of faculty or attendees, the placement of information in Forum materials, or the editorial content of the 2015 Forum Report. Library of Congress Control Number Pending ISBN: 978-0-933067-25-7 ©2016 Pound Civil Justice Institute “[The curtailment of public court processes is] destructive of public confidence in the judiciary. It is destructive of the rule of law for us to do things in secret.” —A judge attending the 2015 Forum “What’s wrong with the truth? If, say, a car manufacturer creates a defective product, what’s wrong with everybody knowing that? That’s our job, to discover the truth.” —A judge attending the 2015 Forum TABLE OF CONTENTS FOREWORD .......................................................................................................................................................................1 INTRODUCTION ..............................................................................................................................................................3 WELCOME BY HONOURABLE NICOLE DUVAL HESLER CHIEF JUSTICE OF THE PROVINCE OF QUÉBEC ..........................................................................................5 MORNING PAPER, ORAL REMARKS, AND COMMENTS ....................................................................................7 Executive Summary .....................................................................................................................................................7 “Contracting Transparency: Public Courts, Privatizing Processes, and Democratic Practices” Judith Resnik, Yale Law School ............................................................................................................................9 Oral Remarks of Professor Resnik ...........................................................................................................................65 Comments by Panelists, Response by Professor Resnik, Questions from the Floor .........................................86 LUNCHEON ADDRESS .................................................................................................................................................95 First Amendment Issues in Judicial Transparency Adam Liptak, U.S. Supreme Court Correspondent, The New York Times ....................................................95 AFTERNOON PAPER, ORAL REMARKS, AND COMMENTS ..........................................................................101 “Judicial Transparency in the Twenty-First Century” Nancy Marder, IIT Chicago-Kent College of Law .........................................................................................101 Oral Remarks of Professor Marder ........................................................................................................................125 Comments by Panelists, Response by Professor Marder, Questions from the Floor ......................................142 CLOSING PLENARY .....................................................................................................................................................147 THE JUDGES’ COMMENTS ......................................................................................................................................151 POINTS OF AGREEMENT ..........................................................................................................................................191 APPENDICES .................................................................................................................................................................195 Faculty Biographies ..................................................................................................................................................195 Judicial Attendees .....................................................................................................................................................202 Forum Underwriters ................................................................................................................................................206 About the Pound Civil Justice Institute .................................................................................................................207 Officers and Trustees of the Pound Civil Justice Institute ..................................................................................209 Papers of the Pound Civil Justice Institute ............................................................................................................210 JUDICIAL TRANSPARENCY AND THE RULE OF LAW i FOREWORD The Pound Civil Justice Institute’s twenty-third Forum for State Appellate Court Judges was held on July 11, 2015, in Montréal, Québec, Canada. As with all of our past forums, it was both enjoyable and thought- provoking. In the Forum setting, judges, practicing attorneys, and legal scholars were able to consider the crucial issue of transparency in judicial proceedings and the impact on the rule of law of the increasing instances of non-public dispute resolution. The Pound Institute recognizes that the state courts have the principal role in the administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can have a brief, pertinent dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is always fruitful. Our attendees always bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints always emerges in our Forum reports. Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics, ranging from the court funding crisis, to the decline of jury trial, to separation of powers and forced arbitration. We are proud of our Forums, and are gratified by the increasing attendance we have experienced since their inception, as well as by the very positive comments we have received from judges who have attended in the past. A full listing of the prior Forums and their content is provided as an appendix to this report. Digital versions of our Forum reports—along with most of our other publications—are available free of charge via our website: www.poundinstitute.org. The Pound Institute is indebted to many people for the success of the 2015 Forum for State Appellate Court Judges: • Professor Judith Resnik and Professor Nancy Marder, who wrote the papers that framed our discussions; • the Honourable Nicole Duval Hesler, Chief Justice of the Province of Québec, for welcoming us to Montréal and for providing for the judges who attended the Forum a tour of her court’s beautiful building; • our luncheon speaker, Adam Liptak, the U.S. Supreme Court correspondent of The New York Times, for discussing the connection between judicial transparency and the First Amendment; • our panelists—Matthew Bailey, Hon. Anne Elizabeth Barnes, Leslie Brueckner, Lance Cooper, Ronald Hedges, Patrick Malone, John Parker Sweeney, and Hon. Jean Hoefer Toal; JUDICIAL TRANSPARENCY AND THE RULE OF LAW 1 • Kathleen Flynn Peterson, who, as Pound’s Vice President, did a fantastic job moderating the Forum in my absence; • the moderators of our small-group discussions—Linda Atkinson, Chris Aumais, James Bilsborrow, Kathryn Clarke, Thomas Fay, William Gaylord, Stephen Herman, Molly Hoffman Wolfe, Adam Langino, Wayne Parsons, Alinor Sterling, and John Vail—for helping us to arrive at the essence of the Forum, which is what experienced state court judges think about the issues we discussed; • and the Pound Civil Justice Institute’s efficient and dedicated staff—Mary Collishaw, our executive director, and Jim Rooks, our consultant and Forum Reporter—for their diligence and professionalism in organizing and administering the 2015 Judges Forum. It goes without saying that we appreciated the attendance of the distinguished group of judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reviewing this report of the Forum, and that you will find it useful to you in your future consideration of matters relating to judicial transparency, the rule of law, and trial by jury. Herman J. Russomanno President, Pound Civil Justice Institute, 2013-15 2 JUDICIAL TRANSPARENCY AND THE RULE OF LAW INTRODUCTION On July 11, 2015 in Montréal, Québec, Canada, 172 judges, representing 38 states, took part in the Pound Civil Justice Institute’s twenty-third annual Forum for State Appellate Court Judges. The judges examined the topic, “Judicial Transparency and the Rule of Law.” Their deliberations