This article addresses the origin and development of the ABA Canons of Judicial Ethics, the subsequent reformulation of the Canons into the ABA Model Code of Judicial Conduct, and how the federal judiciary initially applied and adopted the ABA's efforts for most of the twentieth century. This article traces how, following the ABA's subsequent efforts to improve its Model Code and to remain consistent with the growth of congressional action on judicial ethics, the federal ethics rules and the ABA Model Code began to diverge in the 1990s. In light of recent developments prompting the ABA once again to reform its Model Code, and because significantly different pressures to reform are being placed on the federal judiciary from within and without, we predict that the federal judiciary's own rules of conduct and the ABA Model Code will continue to diverge.

The Federal Judiciary and the ABA Model Code: The Parting of the Ways

Abstract Many scholars have highlighted the individual, organizational and inter-organizational causes of organizational wrongdoing; others have focused on its (negative) consequences or have analyzed how it can persist and spread between organizations. An underlining assumption shared by many of those studies is that organizational wrongdoing is a deviant, society-damaging phenomenon originating from individual and organizational actors’ pursuit of undue advantages. We argue that, at least in some cases, actors may also have “organizational reasons” for wrongdoing, besides self-interest. This article aims at analyzing the organizational reasons for wrongdoing in the CSM affair, a scandal that shed light on the deviant practices for career paths within the Italian judiciary system. By relying on documents and several semi-structured interviews to judges, public prosecutors, and experts in the field, we reconstructed actual practices for career advancement (extra-legal governance) and compared them with formal policies (legal governance). Our analysis shows that deviant practices were not merely occasional episodes of favoritism, but were part of an extra-legal governance system that involved virtually all of Italy’s judges. We also found that the CSM decoupled formal policies from actual practices to manage two organizational trade-offs – bureaucratic rules vs. efficiency, and independence vs. accountability. Therefore, besides individual gain, actors had two major “organizational reasons” for wrongdoing: first, they needed to cope with a lack of organizational capabilities and resources; second, they needed to address calls for greater accountability. In the light of our findings, we conclude with some considerations about organizational learning and the relation between law, organizations, and wrongdoing. 

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The organizational reasons for wrongdoing. The case of Italy’s Superior Council of the Judiciary (CSM)

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George Edwards

Papers

Commentary on Judicial Ethics