A judge’s most important job is to be impartial. Otherwise, the justice they dispense cannot be blind, as it must be. However, judges are also human beings, meaning that the influences and biases that make it difficult for humans to be impartial–most importantly the self-serving bias—affect judges just as they affect everyone else. The self-serving bias seems to have struck a heavy blow in the federal bankruptcy court of the Southern District of Texas.
Bankruptcy Judge David R. Jones was until recently one of the most respected bankruptcy judges in America. Along with his mentor and fellow bankruptcy judge Marvin Isgur, Jones was primarily responsible for the creation of a complex case panel system in 2016 that made the Houston court an attractive venue for the nation’s largest bankruptcy filings. Indeed, Jones came to have a massive caseload (4,200 cases) and handled more such cases than any other bankruptcy judge in the country since 2016.
Kirkland & Ellis, the huge national law firm, often funneled its bankruptcy clients to the Southern District of Texas, using Jackson Walker as its local affiliate. And here came the rub. Attorney Elizabeth (Liz) Freeman was a partner in Jackson Walker’s bankruptcy practice. Unbeknownst to most people, it appears, she had been in a romantic relationship with Judge Jones since at least 2017 while living with him in a jointly-owned house. Freeman worked on cases that were resolved by Judge Jones and on cases handled by other bankruptcy judges where Judge Jones served as a court-appointed mediator. Judge Jones did not disclose his relationship with Freeman nor recuse himself from cases she worked on.
The Jones-Freeman relationship came to light when a shareholder of a bankrupt company that had been in Judge Jones’ court in a case involving Jackson Walker filed a lawsuit alleging that Jones had “lied by omission” by not disclosing his relationship with Freeman. When questioned by Wall Street Journal reporters, Judge Jones admitted that he had shared a home with Freeman for several years but claimed that he was not required to disclose the relationship for three reasons.
First, Judge Jones pointed out that Freeman did not appear in his courtroom. He ignored the fact that she was, nonetheless, handsomely compensated for working on the cases on behalf of Jackson Walker clients in cases he resolved.
Second, Judge Jones said that there was no economic benefit to him from Freeman’s legal work. This is difficult to credit because Judge Jones approved $1 million in fees for work performed by the woman who had been living with him in a romantic relationship for several years and was co-owner of their house.
Third, Judge Jones pointed out that the two were not married. This was not persuasive in light of the fact that the Code of Conduct for U.S. Judges (a) required Judge Jones to recuse himself from “a proceeding in which [his] partiality might reasonably be questioned, including in cases where a spouse represents a party in the litigation or might otherwise have an interest in the outcome of a case,” and (b) provides that “recusal considerations applicable to a judge’s spouse should also be considered with respect to a person other than a spouse with whom the judge maintains both a household and an intimate relationship.”
Indeed, Judge Jones invented an imaginative motive for his failure to disclose—that he didn’t want to send a signal to attorneys that “if you were going to be appearing [before him], you should go out and hire Jackson Walker.” Of course, another way, and the proper way, to send that signal would be to disclose and recuse.
Overall, as Professor Adam Levitin at Georgetown pointed out, the mere appearance of partiality was sufficient to require Judge Jones to disclose and recuse.
Once the relationship came to light, the Chief Judge of the Fifth Circuit Court of Appeals quickly filed an ethics complaint against Judge Jones preparatory to launching an investigation into the facts and almost immediately Judge Jones resigned his position effective a month later, on November 15, 2023.
You might be asking yourself how Judge Jones could have gotten himself into this position and how he could have offered up such transparently lame explanations for his failure to disclose and recuse. The answer is possibly that Judge Jones simultaneously really wanted (a) his job, (b) his romantic relationship with Freeman, and (c) the money ($750/hour) that Freeman was making working on the cases before him. “Screw the Code of Conduct,” he might have said to himself. However, as Leonard Mlodinow has noted:
Our culture likes to portray situations in black and white. Antagonists are dishonest, insincere, greedy, evil. They are opposed by heroes who are the opposite in terms of those qualities. But the truth is, from criminals to greedy executives to the ‘nasty’ guy down the street, people who act in ways we abhor are usually convinced that they are right.
More likely, the self-serving bias, reinforced by the overconfidence bias, enabled Jones to convince himself that his actions were permissible. He probably didn’t realize that a different part of his brain judges the propriety of his own actions than judges the actions of others. The self-serving bias affects how people, including judges, collect, process, and even remember information. It often makes what we perceive to be best for us to seem to us to be what is best. The overconfidence bias is our tendency to be more confident in our moral character and judgment than is objectively reasonable, often believing, for example, that we will not fall prey to conflicts of interest though we suspect others will. When the self-serving bias is reinforced by the overconfidence bias, the path is paved for multiple psychological processes to undermine moral decision making, including:
- The Illusion of Objectivity. Overconfidence combined with the self-serving bias can lead jurists (and others) to “just know” that they are objective in their decision making and able to ward off the influence of conflicts of interest that would influence others. Physicians generally believe themselves to be immune to the blandishments of Big Pharma, but many empirical studies show that a great percentage of them are in fact significantly influenced (likely subconsciously) in their medical judgments. Judges are similarly vulnerable.
- Psychological Entitlement. People, including judges, often see themselves as having accomplished more than others (e.g., the creation of a very successful bankruptcy court docket) and therefore more deserving of special treatment than others, even though objective third parties would likely not agree.
- Motivated Reasoning. Many people, including jurists, fall prey to motivated reasoning—processing information toward conclusions they find attractive. Judge Jones concluded that he wasn’t required to disclose his romantic relationship, while Cliff White, previously a manager of the US Trustee program, described Jones’ actions as “a body blow to the integrity” of the bankruptcy system.
- Moral Disengagement. The late Stanford psychologist Albert Bandura used this concept to explain how normal people often use a variety of strategies to simply switch off their moral standards in situations where they do not wish to follow them. One such common strategy, as Feldman and Smith point out, is to “engage in constructing self-serving interpretations of the legal and organizational requirements they must follow,” which Jones certainly did.
This blog post is growing lengthy, so it is time to start drawing it to a close. But the evidence is clear that human beings who consider themselves to be good folks, can convince themselves that it is okay for them to do bad things. The evidence that judges are entirely human in this regard is clearly supported by the academic literature and we have addressed it in previous blog posts involving Justice Thomas [https://ethicsunwrapped.utexas.edu/justice-thomas-conflicts-of-interest-and-the-supreme-court], Justice Scalia [https://ethicsunwrapped.utexas.edu/biases-of-a-supreme-court-justice], and the Supreme Court generally [https://ethicsunwrapped.utexas.edu/supremely-overconfident].
The evidence currently available certainly points to Judge Jones screwing up very badly indeed, but probably not intentionally. His mind likely constructed a world in which the failure to disclose was perfectly permissible. As Milton C. Regan observes:
Most people are not indifferent to moral concerns. A person’s self-esteem usually rests in fundamental ways on the belief that he is a good person who tries to do right and avoid wrong. We know that people are strongly motivated to maintain this self-image even in the face of what might seem to be evidence of misconduct. This motivation leads individuals in many cases to interpret their own behavior in self-serving ways that allow them to believe that they have acted morally, or at least not immorally. Even many whom we think of as moral monsters have been able to convince themselves in the face of widespread condemnation that they acted in the service of noble ends. It is rare for a person to acknowledge to himself or others that he perceived a clear choice between right and wrong and deliberately chose the latter.
Albert Bandura, Moral Disengagement: How People Do Harm and Live with Themselves (2016).
Anna Spain Bradley, “The Disruptive Neuroscience of Judicial Choice,” UC Irvine Law Review 9:1 (2018).
Dolly Chugh, A More Just Future: Psychological Tools for Reckoning with Our Past and Driving Social Change (2022).
Susan L. Coyle, “Physician-Industry Relations. Part 1: Individual Physicians,” Annals of Internal Medicine 135(5): 396-402 (2002).
Yuval Feldman & Henry Smith, “Behavioral Equity,” Journal of Institutional and Theoretical Economics 170(1): 137-159 (2014).
Alexander Gladstone, “Bankruptcy Judge Jones Named in a Lawsuit Over a Romantic Relationship with Local Lawyer,” Wall Street Journal, Oct. 7, 2023, at https://www.wsj.com/articles/bankruptcy-judge-jones-named-in-a-lawsuit-over-romantic-relationship-with-local-lawyer-71df2c00.
Alexander Gladstone, “Trustee Assignment Went to Bankruptcy Lawyer Who Live with Mediating Judge,” Wall Street Journal, Nov. 3, 2023, at https://www.wsj.com/articles/trustee-assignment-went-to-bankruptcy-lawyer-who-lived-with-mediating-judge-f495b362.
Alexander Gladstone, “DOJ Watchdog Seeks to Reverse Some Fees Paid to Law Firm Jackson Walker,” Wall Street Journal, Nov. 3, 2023, at https://www.msn.com/en-us/money/companies/doj-watchdog-seeks-to-reverse-some-fees-paid-to-law-firm-jackson-walker/ar-AA1jkaCA.
Chris Guthrie et al., “Inside the Judicial Mind,” Cornell Law Review 86(4): 777-829 (2001).
Sujeet Indap, “US Bankruptcy Judge Approved Potential $750 Hourly Legal Fee for Girlfriend,” Financial Times, Oct. 29, 2023, at https://www.ft.com/content/b400e1a8-6f12-46db-acf8-326267379a57.
Sujeet Indap, “The Downfall of the Judge Who Dominated Bankruptcy in America,” Financial Times, Nov. 21, 2023, at https://www.ft.com/content/574f0940-d82e-4e4a-98bd-271058cce434.
Jerry Kang et al., “Implicit Bias in the Courtroom,” UCLA Law Review 59(3): 1124-1186 (2012).
Dietrich Knauth, “US Bankruptcy Judge Should Have Disclosed Personal Relationship-Experts,” Reuters, Oct. 20, 2023, at https://www.reuters.com/legal/government/us-bankruptcy-judge-should-have-disclosed-personal-relationship-experts-2023-10-10/.
David Messick, Ethical Judgment and Moral Leadership, in Moral Leadership: The Theory and Practice of Power, Judgment, and Policy 95 (Deborah L. Rhode, ed. 2006).
Leonard Mlodinow, Subliminal: How Your Unconscious Mind Rules Your Behavior (2012).
Dale Miller & Rebecca Ratner, “The Disparity Between the Actual and Assumed Power of Self-Interest,” Journal of Personality and Social Psychology 74(1): 53-62 (1998).
Jeffrey Rachlinski et al., “Inside the Bankruptcy Judge’s Mind,” Boston University Law Review 86(5): 1127-1266 (2006).
Milton C. Regan, Jr., Eat What You Kill: The Fall of a Wall Street Lawyer (2004).
Julia Shaw, Evil: The Science Behind Humanity’s Dark Side (2019).
Aaron Tang, Supreme Hubris: How Overconfidence is Destroying the Court and How We Can Fix It (2023).
Overconfidence Bias: https://ethicsunwrapped.utexas.edu/video/overconfidence-bias.
Self-serving Bias: https://ethicsunwrapped.utexas.edu/video/self-serving-bias.
Justice Thomas, Conflicts of Interest, and the Supreme Court: https://ethicsunwrapped.utexas.edu/justice-thomas-conflicts-of-interest-and-the-supreme-court.
“Biases of a Supreme Court Justice”: https://ethicsunwrapped.utexas.edu/biases-of-a-supreme-court-justice.
“Supremely Overconfident: https://ethicsunwrapped.utexas.edu/supremely-overconfident.