Trump is “Yugely” Wrong in His Attack on Judges

By Professor Laurie L. Levenson

Donald Trump crossed the line when he attacked Judge Gonzalo Curiel as a “Mexican” who could not be fair in his case. Put aside that Judge Curiel was born in Indiana. Put aside that Judge Curiel is a well-respected jurist who has dedicated his career to public service. Put aside that Judge Curiel has done nothing to deserve Trump’s invective. Trump crossed the line by suggesting Judge Curiel has done anything other than completely comply with the ethical standard for judges.

First, there is nothing in the Code of Conduct for U.S. Judges that disqualifies a judge because some litigant has had the audacity to make offensive public comments about the judge’s ethnicity. That rule makes sense. Otherwise, litigants could shop for judges simply by making unfounded accusations against the judge assigned to their case. To the contrary, the rules support the independence of judges by not having them recuse themselves unless they have a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Canon 3(C)(1)(a). There is no indication that Judge Curiel has a personal bias requiring him to disqualify himself. Moreover, Trump has never even made a motion to recuse the judge.

Second, Judge Curiel has always acted appropriately in Trump’s case. Nothing shows that his “honesty, integrity, impartiality, temperament or fitness to serve as a judge [has been] impaired.” Canon 2(A). In fact, the judge went out of his way to allow Trump to focus on his campaign rather than defend his case before the election.

Finally, Trump is picking on a target who cannot readily defend himself. Under Canon 3(A)(6), Judge Curiel cannot make comments about a pending case. Trump took a sucker punch at a person he knows is ethically barred from responding to his outrageous claims.

Overall, Judge Curiel should be praised for the ethical and responsible manner in which he has handled this recent controversy. Trump, on the other hand, should read the Code of Ethics.

The Bellwether Settlement

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

A curious thing is happening in a Bergen County court in New Jersey. A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims. A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement. It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful. The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.