Funny or Bully Pulpit? (Kent)

Before his flame-out, Judge Samuel Kent in Galveston, Texas, garnered a lot of attention for his abrasive writing style. Opinion was split in the legal community. Examples are here, here, here and here.

Some lawyers considered his sarcastic, often rude and insulting opinions hilarious. Some considered them very unjudicial and inappropriate. Probably many others viewed them as a combination of both.

Professor Steven Lubet of Northwestern University law school weighed in on the issue with a piece called “Bullying from the Bench,” in The Green Bag. Steve took issue with Kent’s humor, particularly his ad hominem attacks on lawyers. Here’s a brief excerpt:

Federal judges exercise enormous power over lawyers and their clients. Armed with life tenure and broad discretion, a judge can do great damage to an attorney’s reputation and career, while the lawyer has almost no recourse. So when Judge Kent decided to torment the hapless counsel in the Bradshaw case are identified by name in the published opinion—he was taking aim at people who could not defend themselves. …

In litigation, the judge is the maximum boss. Everyone else is a supplicant, compelled to engage in stylized demonstrations of obedience. We stand when the judge enters and leaves the room. Our “pleadings” are “respectfully submitted.” Before speaking, we make sure that it “pleases the court.” We obey the judge’s orders and we even say “thank you” for adverse rulings. …

By belittling the lawyers who appear before him, Judge Kent used his authority to humiliate people who—in the courtroom environment—are comparatively helpless. There is a name for that sort of behavior, and it isn’t adjudication. It’s bullying.

Steven got it right, of course. The relationship between judge and lawyers is about as one-sided as it gets.  The judge holds all the cards. Sometimes lawyers deserve to get chewed out, but Kent was over the top.

— Steven Lubet, Bullying from the Bench, 5 Green Bag 2d 11, 12 (2001).

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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