Corporations, free-market nonprofits foot bill for judicial seminars
George Mason University top host of events
03/28/2013 06:01:00 AM EDT
Conservative foundations, multinational oil companies and a prescription drug maker were the most frequent sponsors of more than 100 expense-paid educational seminars attended by federal judges over a 4 1/2-year period, according to a Center for Public Integrity
Among the seminar titles were "The Moral Foundations of Capitalism," "Corporations and the Limits of Criminal Law" and "Terrorism, Climate & Central Planning: Challenges to Liberty & the Rule of Law."
Leading the list of sponsors of the 109 seminars identified by the Center were the conservative Charles G. Koch Charitable Foundation, The Searle Freedom Trust, also a supporter of conservative causes, ExxonMobil Corp., Shell Oil Co., pharmaceutical giant Pfizer Inc. and State Farm Insurance Cos. Each were sponsors of 54 seminars.
Other top sponsors included the conservative Lynde and Harry Bradley Foundation (51), Dow Chemical Co. (47), AT&T Inc. (45) and the U.S. Chamber of Commerce (46), according to the Center's analysis.
Sponsors pick up the cost of judges' expenses, which often include air fare, hotel stays and meals. The seminars in the Center's investigation took place from July 2008 through 2012.
The Center identified 185 federal district and appeals court judges who reported attending one or more of the seminars over the period, according to disclosure forms, or about 11 percent of the more than 1,700 federal judges in the United States.
Two schools - George Mason University, located in Virginia just outside Washington, D.C., and Northwestern University based in Evanston, Ill., - hosted more than two-thirds of the seminars.
Roughly three-fourths of the more than 800 sponsors listed in documents were individuals, including a number of judges who took trips, raising the possibility that they may have offset the cost of the seminars with their donations. Most of the remaining underwriters were companies and foundations.
Determining exactly how much was paid by which sponsor is difficult to determine - amounts are not required to be reported under the disclosure rules.
Judicial conferences are billed as educational retreats intended to improve judges' understanding of the law and economics. Judges and seminar hosts say the conferences, which feature lectures and panel discussions, provide helpful information that refines their legal expertise.
But they've long drawn scrutiny for how they are funded and organized.
Since the 1990s, critics have complained that many of the privately funded conferences serve state and federal judges a steady dose of free-market, anti-regulation lectures that could influence judges' rulings from the bench.
Those concerns quieted in 2007, when the Judicial Conference of the United States, a group of senior circuit judges who oversee the U.S. Courts, implemented a policy requiring judges and seminar hosts to disclose information about the conferences.
The most-traveled judges, according to reports filed online by the judges, were U.S. District Judge Charles R. Wolle of the Southern District of Iowa and Chief Judge Thomas B. Bennett of the Northern District of Alabama Bankruptcy Court. Each reported attending nine seminars.
Wolle is a "senior status" judge, meaning he is semi-retired. He did not respond to requests for comment.
The next-most-traveled judges were:
U.S. District Judge Manuel L. Real of the Central District of California and Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals 9th Circuit, covering the Western states, who each took eight trips;
E. Grady Jolly, a federal appeals court judge for the 5th Circuit which includes Texas, Louisiana and Mississippi, and U.S. Bankruptcy Judge Michael B. Kaplan of the District of New Jersey, who each took six trips;
U.S. District Judge Kenneth M. Hoyt of the Southern District of Texas, Chief Magistrate Judge Thomas J. Shields of the Southern District of Iowa and senior-status U.S. District Judge Frederic Block of the Eastern District of New York, each of whom took five trips.
O'Scannlain declined to comment for this story. In an email, Kaplan wrote that the "seminars offer a valuable opportunity for new judicial appointees to enhance their knowledge and skills in complex areas of the law," including economics.
Wolle, Real and O'Scannlain are all listed as seminar sponsors, though records do not indicate how much they contributed.
The Center identified instances where judges who attended seminars underwritten by certain firms and trade groups later issued rulings in the funders' favor.
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In April 2009, for example, Jolly traveled to Northwestern University to attend the "Criminalization of Corporate Conduct" seminar sponsored by the American Petroleum Institute, the U.S. Chamber of Commerce and 13 other funders.
Last August, Jolly wrote the majority 2-1 opinion declaring that the Environmental Protection Agency broke the law when it rejected a Texas emissions cap generally supported by the fossil fuels industry.
Jolly, who did not respond to requests for comment, sided with two of the petitioners in the suit - the American Petroleum Institute and the U.S. Chamber.
Charles Geyh, an Indiana University law professor who specializes in judicial ethics, is skeptical that rulings are directly influenced by corporate sponsor of seminars, but noted, "in a cynic's view that would smack of corruption."
"Even if it has no effect in terms of the decisions judges make, the perception of influence matters a great deal," he says. "It looks as if [corporations] are buying influence, even if it's not true."
Another attendee of the 2009 "Criminalization of Corporate Conduct" seminar was U.S. District Judge Carl J. Barbier, the Eastern District of Louisiana jurist presiding over a high-profile BP civil trial, which is being held without a jury in New Orleans.
Barbier is in charge of considering whether BP owes billions of dollars in fines for gross negligence leading to the 2010 Deepwater Horizon oil platform explosion and spill. The disaster killed 11 people and contaminated a large swath of the Gulf Coast.
In 2011, Barbier dismissed a wrongful-death claim in a suit brought against ExxonMobil and Chevron USA by the widow of a worker who was exposed to radioactive materials found on the companies' equipment.
Barbier's ruling in favor of the oil companies came two years after he attended the corporate conduct seminar, funded in part by ExxonMobil and the American Petroleum Institute, according to documents. The judge did not respond to requests for comment.
George Mason University's Law & Economics Center hosted 45 seminars while Northwestern University's Judicial Education Program hosted 29. A total of 136 federal judges reported attending conferences conducted by the schools during the 4 1/2-year period analyzed by the Center for Public Integrity.
The remaining top five conference hosts, including The Sedona Conference and the Foundation for Research on Economics and the Environment (FREE), collectively organized 28 conferences.
The Koch Foundation and The Searle Freedom Trust supported among the supporters of most of the conferences organized by George Mason and Northwestern. The energy industry was a sponsor in roughly three-fourths of the conferences hosted by Northwestern.
Billionaire brothers Charles and David Koch, major supporters of conservative causes, and their foundations have given millions to George Mason University. As the Center recently reported, the George Mason University Foundation received $4.4 million in 2011 from the Charles Koch Foundation, making up 15 percent of its revenue that year.
The school is the top recipient of Koch foundation money since 1985. George Mason also houses several free market and libertarian research centers, including the Institute for Humane Studies, which received $3.7 million from the Koch foundations, and the Mercatus Center, whose board of directors includes Charles Koch.
Officials from the Charles G. Koch Charitable Foundation did not return phone calls seeking comment for this report.
The Judicial Conference disclosure policy doesn't require seminar hosts to reveal how much donors contribute to conferences. But corporate-giving reports and nonprofit tax records shed some light on the costs.
Oil industry support
In 2011, for example, ExxonMobil reported giving $20,000 to George Mason specifically for its judicial training program. The oil company gave an additional $30,000 to the university's Law & Economics Center, which hosts the conferences. Between 2003 and 2007, the ExxonMobil Foundation gave the think tank $150,000.
ExxonMobil officials did not respond to requests for comment.
Another seminar funder, Donors Trust, gave George Mason's Law & Economics Center nearly $450,000 in general support in 2010. As the Center reported, Donors Trust helps conservative foundations and individuals give money anonymously to nonprofits that may take controversial positions.
A representative of Donors Trust declined to comment for this story.
The Searle Freedom Trust, a foundation advocating "economic liberty" which regularly donates to conservative groups like the Cato Institute and the American Enterprise Institute, contributed a combined $400,000 to George Mason's judicial education programs in 2010 and 2011.
The school conducted conferences on antitrust law as well as "Corporations and the Limits of Criminal Law," both funded by AT&T, BB&T, BP America, Cigna, Coca-Cola, Dow Chemical, FedEx Corp. and others.
"The Moral Foundations of Capitalism" was funded by the same group, and was the most popular George Mason conference, drawing at least 10 federal judges.
BP spokesman Scott Dean says the company has no record of ever directly contributing to the seminars but he did say BP gave the law school and the Law & Economics Center more than $37,000 between 2001 and 2008.
Seminars at Northwestern are hosted by the school's Searle Center on Law, Regulation, and Economic Growth. The think tank, according to its website, was founded in 2006 thanks to a "generous grant" from Daniel C. Searle, the late pharmaceutical industry executive.
In 2009, the foundation gave $200,000 to Northwestern's Searle Center for its judicial education program.
Another Northwestern seminar funder, The Lynde and Harry Bradley Foundation - a major supporter of conservative organizations, including the Heritage Foundation - gave $210,000 to the Searle Center between 2008 and 2010.
Records show corporate sponsorship at Northwestern was highest from 2008 through 2010, when a man named Henry Butler - now in charge of George Mason University's Law & Economics Center - ran the Searle Center.
Daniel Rodriguez, dean of Northwestern University's School of Law, says corporate sponsorships at the school "ended the moment Butler left." Rodriguez says the school recently decided to terminate the programs. The dean says he's against corporate sponsorship of judicial seminars.
"These programs should be free from any real or perceived conflict of interest," he says.
In the late 1990s and early 2000s, advocacy groups and media outlets raised concerns about judges attending privately funded conferences conducted in vacation destinations like Arizona, Montana and Florida.
Critics claimed that the undisclosed trips created conflicts of interest and cast doubt on the ability of judges to decide cases without bias.
Seminars hosted by the Foundation for Research on Economics and the Environment (FREE) attracted the most attention.
FREE, a Montana-based think tank championing "free-market environmentalism," drew criticism for its ideologically conservative seminars. In 2011, for example, FREE hosted "Terrorism, Climate & Central Planning: Challenges to Liberty & the Rule of Law."
Critics complained that judges spent their free time golfing, fishing and horseback riding at the conference's Montana resort location. They worried that judges were being wined, dined and entertained by FREE's funders, which included Koch Industries and Texaco Inc. (now part of Chevron Corp.).
Media scrutiny prompted members of Congress in 2000 to introduce legislation that would prohibit judges from accepting "anything of value in connection with a seminar." The bill, which died in committee, was opposed by the Judicial Conference, which claimed it restricted judges' free speech rights.
Similar legislation failed again in 2003.
In 2007, the Judicial Conference implemented a policy designed to provide "greater transparency" by setting up disclosure requirements for both judges and seminar hosts.
"Instead of banning anything," says Geyh, the policy "was a way to mollify those who recognized the perception problem without causing the ones who treat [the conferences] as a First Amendment issue to go ballistic."
Even with the new policy, the seminars still have critics.
"These seminars are taking place because large corporate interests are hoping to influence the outcome of cases involving themselves or likeminded entities," says Nan Aron, president of the Alliance for Justice, a liberal organization that first raised concerns about judicial education conferences in a 1993 report titled "Justice for Sale."
Russell Wheeler, former deputy director of the Federal Judicial Center, an education and research agency for the federal courts, says it's possible that funders could be truly dedicated to improving judges' understanding of the law.
But, he says, "You've got to be pretty naïve to believe that."
"It's the funders that create the problem," says Stephen Gillers, a New York University law professor who specializes in legal ethics. "The money comes from interests that have matters before the courts, and they'd like to have those matters settled in their favor."
Many of the seminars are conservative in nature, especially those hosted by George Mason. But there are a few exceptions. A June 2010 conference sponsored by the Open Society Institute, a foundation founded by liberal investor George Soros, focused mainly on human rights law.
(The Center for Public Integrity has received funding from Soros' Open Society Foundations.)
Events hosted by the Sedona Conference, a nonprofit whose seminars address legal issues like antitrust law and intellectual property, have been funded primarily by law firms.
Speaking from the right
According to The Center for Public Integrity's analysis, the person who spoke at more judicial conferences than any other was Butler, a professor and prominent conservative formerly of Northwestern and now executive director of George Mason's Law & Economics Center.
He has taught judicial seminar courses with titles like "Economic Thinking" and "Economics of Insurance." A former Republican candidate for Congress - he lost a 1992 bid - Butler was a "Koch Distinguished Professor of Law and Economics" at the University of Kansas.
Butler's resume cites his "professional affiliations" with the conservative Federalist Society and the Mont Pelerin Society, which decries society's loss of freedoms "fostered by a decline of belief in private property and the competitive market."
Butler declined to be interviewed for this story. In response to emailed questions about George Mason's judicial seminars, he wrote, "You seem to have a well-established theme to your story, accordingly we don't see any advantage in collaborating with you."
Daniel Polsby, dean of the George Mason University School of Law, also declined to answer questions for this story other than to say: "We're very proud of the activities and programs of the Law & Economics Center" via email.
Another frequent seminar instructor is Terry L. Anderson, president of the Property and Environment Research Center, a conservative think tank "dedicated to improving environmental quality through property rights and markets."
Anderson, a senior fellow at the conservative Hoover Institution, has regularly led "Free Market Environmentalism" lectures at conferences hosted by both George Mason and Northwestern.
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In January 2011, Anderson was one of four lecturers who spoke at George Mason's "Advanced Institute on Environmental Economics" conference, which was funded in part by ExxonMobil, BP America and Shell Oil.
The other three speakers were Andrew Morriss, co-author of the book "The False Promise of Green Energy"; Robert K. Fleck, an economics professor who has received thousands of dollars in research grants from the Charles G. Koch Charitable Foundation; and Jason Johnston, a former fellow with the Koch-funded, Anderson-led Property and Environment Research Center and a critic of efforts to reduce greenhouse gas emissions.
"I don't express views" during lectures, says Anderson. He says his talks are based strictly on economic analysis. "None of my lectures are aimed at changing any judge's opinion" about a case before them in court.
George Mason law professor Todd J. Zywicki, another regular judicial program speaker, has taught judges about issues like mortgage markets and consumer credit.
He is a senior scholar at the school's conservative Mercatus Center, and has ties to the Goldwater Institute, a libertarian think tank, and the Competitive Enterprise Institute, which is "dedicated to advancing the principles of limited government, free enterprise, and individual liberty." Zywicki did not respond to a request for comment.
George Mason "is known to stage conferences that have a conservative economic perspective," says Gillers, the NYU law professor.
One frequent attendee of George Mason's judicial seminars, Judge Bennett of Alabama bankruptcy court, told the Center "I'm not going to be snowed by anybody's presentation." He said he finds the seminars "infinitely invaluable."
"You can accumulate information much more quickly than if you sit in your office and read stuff," he says.
Bennett dismisses criticism of George Mason's judicial conferences - even though he acknowledges that they often feature conservative voices.
"I believe they put on a fairly balanced program," he says, noting that he doesn't pay attention to who funds the conferences. "I've been to George Mason seminars where they've had people who are not conservative. It's all in the eye of the beholder."
Northwestern's 2009 seminar titled "Criminalization of Corporate Conduct" included a speaker panel that was very corporate-friendly - something George Mason's Henry Butler openly acknowledged during his presentation summing up the day's events.
Butler noted "a question can be raised" about the panels' balance and "do we have enough people here that are representing the prosecutor's perspective." (His remarks are posted on YouTube.) "And I certainly can plead guilty to that accusation."
"On the other hand," he continued, "I have to explain to you that we've had difficulty in the past getting the U.S. attorneys to participate in these programs."
The December 2010 "Climate Change Litigation" session hosted by George Mason's Law & Economics Center was sponsored in part by BP America, ExxonMobil and Shell Oil and featured four speakers.
Two were attorneys who have represented corporate clients like Koch Industries and ExxonMobil. A third speaker, Johnston, the former Property and Environment Research Center fellow, spent part of his presentation criticizing the American civil courts system for making American companies less competitive on the international stage.
Butler, who moderated the panel, acknowledged the imbalance as he introduced a last-minute replacement for the fourth panelist.
"Eric Mayer is going to be pro-public nuisance, climate-change litigation cases, and the other three are basically going to express some skepticism," Butler said in his introduction, identifying Mayer, a lawyer who has represented plaintiffs as well as corporate defendants.
The announcement drew laughs from panelists and audience members.
"This may seem unbalanced," Butler continued, "but Eric is not daunted by this challenge at all."
Donor names disappear
The "transparency" policy regarding judicial trips may be weak, but the names of the corporations, foundations and individuals that pay for the conferences at least are available to the public.
Now, even that bit of sunshine is clouding over.
In 2012, George Mason's Law & Economics Center began listing "xyz corp.," as a sponsor before listing itself as the only donor on official disclosure documents. However, the think tank does provide a list of donors on its website.
The 2007 Judicial Conference policy allows such reporting if the support comes from general revenues or from endowments or gifts "not raised for the particular educational program or for the purpose of educating judges."
Geyh, the Indiana University law professor, says the policy enables conference hosts to shield their donors and make it tough for judges to identify potential conflicts before attending seminars.
"It does raise transparency issues," he says. "It strikes me as some semantic game-playing with the rules."
John Dunbar contributed to this report.
The Center for Public Integrity is a non-profit, independent investigative news outlet. For more of its stories on this topic go to publicintegrity.org.