Tom Lininger
86 Geo. Wash. L. Rev. 711
As a sequel to Green Ethics for Lawyers, which appeared in the Boston College Law Review in 2016, this Article proposes new ethical rules for judges in order to ensure proper cognizance of environmental risks. The Article considers arguments for and against the promulgation of unique rules for environmental cases. Concluding that such customized rules would not be appropriate, the Article advocates new rules of general application that would incidentally improve judicial ethics in the context of environmental matters, as well as in other contexts.
This Article offers a comprehensive set of proposed amendments to the American Bar Association (“ABA”) Code of Judicial Conduct. The proposals would import the “precautionary principle” to judicial ethics and would establish an ethical imperative to find scientific facts accurately. The proposals would increase transparency, require inclusion of diverse stakeholders, necessitate greater candor by judicial candidates, expand the bases for disqualification of judges, clarify the boundaries of the political question doctrine, and demand greater patience from judges presented with arguments to extend current law. The proposed rules would also insist that judges consider nonhuman interests as well as intergenerational equity.
These proposals are likely to draw objections. The last section of the Article anticipates and refutes concerns that the new judicial ethics would impose improper constraints on judges’ substantive rulings, would unduly politicize the judiciary, would require judges to make determinations beyond their expertise, would infringe judges’ First Amendment rights, and would prove less efficacious than alternative means of regulating judicial conduct. The Article closes by arguing that the proposed amendments are not a radical departure from current rules, but are instead a logical extension of the principles underlying those rules.
