George Orwell on Judges Who Take Bribes From Both Sides in a Case:

Thomas Porteous, the Louisiana District judge who is being investigated by the House Judiciary Committee is accused of, among other things, taking money from lawyers on opposing sides of a case he was presiding over:

Two lawyers, Robert Creely and Jacob Amato, both friends of Porteous, admitted they had been making cash payments to him for more than a decade...

Yet it was a poorly timed proposition while hearing a case over the ownership of a Kenner hospital that led to what the [Fifth Circuit] Judicial Council called Porteous' most egregious actions.

During a fishing trip in May or June 1999, Porteous broke down, pleading with Amato for money to finance his son's wedding, documents show. Creely and Amato agreed to help, funneling a few thousand dollars to the judge. Porteous also had been receiving gifts, money, and expensive meals from other lawyers, including Don Gardner, Leonard Levenson and Warren "Chip" Forstall, the report says.

In May 1999, the judge took Creely and Gardner to Tim Porteous' bachelor party in Las Vegas. Forstall paid for the flight, and Creely paid for Porteous' hotel room at Caesar's Palace.

All this took place while Porteous was presiding over the hospital case. Amato, Creely's partner, was attorney for one party, and Gardner was representing the other side.

This reminds me of George Orwell's fictional description in Burmese Days, of U Po Kyin, a corrupt Burmese magistrate who takes bribes from both parties in a case and then issues rulings based solely on the legal merits:

As a magistrate his methods were simple. Even for the vastest bribe he would never sell the decision of a case, because he knew that a magistrate who gives wrong judgments is caught sooner or later. His practice, a much safer one, was to take bribes from both sides and then decide the case on strictly legal grounds. This won him a useful reputation for impartiality.

Of course, U Po Kyin's strategy might not be sustainable over the long run. Eventually, litigants would realize that bribing him doesn't improve their chances of winning a case. Thus, the truly sophisticated corrupt judge would allow bribes to influence the outcome at least occasionally, in order to keep the money coming. Perhaps that is what Judge Porteous did. Unlike Orwell's fictional magistrate, however, Porteous wasn't smart enough to avoid getting caught.

Related Posts (on one page):

  1. George Orwell on Judges Who Take Bribes From Both Sides in a Case:
  2. House Judiciary Committee To Investigate Possible Impeachment of Federal District Judge:
Cornellian (mail):
Interesting that both parties appeared to be aware of what the other was doing. Something peculiar to Louisiana perhaps?
9.17.2008 1:03am
Ilya Somin:
Interesting that both parties appeared to be aware of what the other was doing. Something peculiar to Louisiana perhaps?

Maybe, but not necessarily. If you know that the judge is corrupt and that the other side has offered a bribe, that might increase your incentive to come up with a bribe of your own.
9.17.2008 1:09am
Eventually, litigants would realize that bribing him doesn't improve their chances of winning a case.

You'd think that were the case, but we have had decades of economic studies reporting conflicting findings about whether campaign contributions influence votes and whether advertising can really influence consumer choice in the long run. And we have virtual unanimity on whether pumping money into stock analysis allows someone to beat the market. Yet the relevant interested parties nonetheless keep pumping money into these endeavors, seemingly in everlasting optimism that they would work.
9.17.2008 1:20am
My favorite parallel to the Burmese judge story is the old saw about a student who paperclipped a $100 dollar bill to his exam, with a note that said "One dollar for each point." The TA graded the exam, gave him the 68 he deserved and stapled $32 change to the exam.
9.17.2008 1:27am
"This won him a useful reputation for impartiality."

I love that sentence.
9.17.2008 1:49am
one of many:
I didn't realize it was alright to go to a judges son's bachelor party in L.V. and pay for the judge's hotel room or airfare when I had a case before him. So that's what I've been doing wrong. Dang I never even go on fishing trips with judges. I must admit to having been at parties with judges but that's kinda hard to avoid, and I wouldn't have dreamed of inviting one to a party I was hosting if I had a case before them.
9.17.2008 1:53am
Sasha Volokh (mail) (www):
Couldn't it be a workable strategy to suggest an $X bribe to each side? The rule would be that if both give $X or if both give $0, the decision's on the merits, while if one gives $X and the other gives $0, the decision goes to whoever gave $X. You could make it difficult for the parties to collude on a $0 bribe by making the bribes secret. (Of course they're secret from the world, but the judge wouldn't let either party know if the other party had contributed, to make it easy for colluding parties to cheat on their opponents.)

You could even do it without suggesting a particular number $X, just say the case goes to the highest briber; I decide on the merits if the bribes are equal; and bribe amounts are secret. Suppose the case is worth the same to each side, both parties believe the outcome on the merits is uncertain, and bribes can take any real value. Then there's no Nash equilibrium in pure strategies (but of course there is one in mixed strategies), meaning zero bribes from each side isn't an equilibrium.
9.17.2008 2:15am
Jay Myers:

Eventually, litigants would realize that bribing him doesn't improve their chances of winning a case.

The question is whether not giving a bribe to the judge will decrease your chances of winning a case. You are thinking in terms of the judge giving positive reinforcement to encourage bribes when it is actually a case of positive punishment.
9.17.2008 2:17am
llamasex (mail) (www):
If only money weren't speech we could outlaw such actions.
9.17.2008 2:18am
MG0 (mail):
The judge's behaviour was totally unethical! Bar associations have strict rules about conflicts of interests!
9.17.2008 2:29am
Cornellian (mail):
I think the more efficient approach would be to go with bribes based on a percentage of the amount at stake. After all, it would be insulting to offer a $1000 bribe to fix a billion dollar case. Conversely, you don't want to overshoot the mark by offering more than a case is really worth.
9.17.2008 2:44am
one of many:
Eventually, litigants would realize that bribing him doesn't improve their chances of winning a case.

And you would volunteer to be the first to see if you weren't punished for failure to bribe the judge? If a $100 bribe could save you from a 20 year sentence would you want to risk it? the trick (for the judge) is to keep the bribes low enough relative to the risk that no one ever feels it is worth the risk to put it to the test.
9.17.2008 3:20am
Paul Milligan (mail):
At least he's even-handed about it - he's got both hands out for money !

9.17.2008 5:29am
Perseus (mail):
I usually accept bribes from both sides so that tainted money can never influence my decision. —Sir Francis Bacon, Lord Chancellor of England
9.17.2008 5:55am
Professor Somin, it makes me think of the judge Azdak from Brecht's play The Caucasian Chalk Circle too. He had a similar "take bribes but issue decisions uninfluenced by them" policy.
9.17.2008 8:20am
The bribe from the other side is to keep things fair.

If one side bribes, and the other doesn't, the decision must go to the bribing side or the judge will not get another bribe.

If both sides bribe, then the judge must go out of his way to rule strictly on the law and proofs in the case. So long as both sides know they have bribed, both will be happy so long as the decision is fair and shown to be proper.
9.17.2008 9:41am
Ken Arromdee:
Eventually, litigants would realize that bribing him doesn't improve their chances of winning a case.

This isn't clear. It sounds like a classic race-to-the-bottom--both sides give a bribe to gain an advantage over the other, and they cancel out and it's just as if there weren't any bribes, except the sides lost the bribe money. One side couldn't decide on its own not to give bribes, since it's possible that with a lopsided bribe the judge would rule for that side.

And even if the judge isn't affected by lopsided bribes, I'd think that taking a bribe and not being affected by it is the ultimate "appearance of impropriety" example. We have "appearance of impropriety" rules because even though in theory the judge's judgment may be unaffected, he's motivated to be affected, and if he is it would be hard to prove.
9.17.2008 11:06am
Handed Learn:

Interesting that both parties appeared to be aware of what the other was doing. Something peculiar to Louisiana perhaps?

It's certainly possible. After all, a former four-term Louisiana governor is sitting in federal prison for accepting bribes and extortion. A few years ago, three Louisiana insurance commissioners in a row spent time in federal prison (at one point, I think, simultaneously) for bribery/influence peddling. And another Louisiana federal district judge, Robert Collins, was convicted of bribery in 1991 and actually spent quite a bit of time in federal prison collecting his judicial salary because the House was so slow to draw up articles of impeachment. Ultimately, he resigned before that happened, which is why his name doesn't appear on the "lucky 13" list of impeached judges.
9.17.2008 11:11am
Even Louisiana has got nothing on Afghanistan. A briefing a few months back had a blurb about a new judge who announced in his inaguration speech: "I spent a lot of money to get this job, and I intend to make it all back before I go." That made me realize that I prefer hypocrisy where at least people make an effort to look honest. There, at least, you have a chance at fairness.
9.17.2008 11:27am
byomtov (mail):
It could be argued that Orwell's judge was actually just taking a cut of the legal fees, and the money wasn't really coming from the litigants at all, or at least not all of it was.

Assuming legal costs are a consideration in deciding whether and how far to pursue a case the litigant doesn't really care who gets the money. The bribe just gives the judge a share.
9.17.2008 11:51am
Mikeyes (mail):
I have a diploma with Edwin Edwards signature on it. For some reason it is the only name that is fading away. Maybe I didn't send him enough money :grin:
9.17.2008 12:20pm

Interesting that both parties appeared to be aware of what the other was doing. Something peculiar to Louisiana perhaps?

Another explanation is that the judge is letting them know. "Hey Fred, Bill over there thinks he can buy this case for $2,000. What do you think it would take?" Anyway of letting one side know the current "bid" helps the judge to get more money.
9.17.2008 12:50pm
Ming the Mericless Siamese Cat (mail):
A few years back, when I was practicing in Asia, a disgrunteld Indonesian defense lawyer in a commercial dispute tape recorded a telephone conversation with a local judge's law clerk. The clerk requested an unspecified cash payment in advance of a dispositive hearing. The lawyer, being thorough and precise, sought assurance that "if I pay you $10,000, you can guarantee the judge will dismiss the case?"

"Oh no," replied the clerk "that depends upon what the other side pays."
9.17.2008 1:42pm
Nothing unusual here, except that you're probably only seeing part of the story.

Lawyer A , Lawyer B, and Judge C all need cash. They agree that A will file a lawsuit for (say) $5M against B's client. The judge will arrange it so that B loses but "only" has to pay $1M. A wins a case for his client and collects $300K of the $1M as his fee. B tells his client he saved him $4M, and charges a $300K fee. A and B each give $100K of their take to Judge C.

A, B, and C each net $200K. BTW, I don't believe this scenario is all that uncommon in some part of the US.
9.17.2008 3:25pm
Sbard (mail):
This situation is a classic prisoner's dilemma. Though the optimal outcome would be for both sides to cooperate (not bribe the judge), the individual outcome for either side is better if they do bribe the judge than if they don't.
9.17.2008 5:04pm
lsu (mail):
Years ago, Judge Porteous was one of my trial advocacy instructors. Funny, he didn't mention bribing the judge as a trial tactic.
9.17.2008 5:50pm
Joe Bingham (mail):
Burmese days = most depressing book ever.
9.17.2008 7:27pm
RR Ryan (mail):
Am I missing something here? Why is the judge paying for his son's wedding. Isn't that father of the bride territory?
9.17.2008 9:53pm
John P (mail):
Here's a classic I heard while in law school (Texas 89).

Bailiff goes to each of the litigants and tells them that he can get the Judge to rule in their favor for $1,000. Both sides pay. The Bailiff does nothing and awaits the Judge's ruling. He then refunds the losing party's money, telling them that he spoke to the Judge, but the Judge refused to help. The loser is appreciative nonetheless and the Bailiff walks away with the winner's $1,000.
9.18.2008 11:27am
Reminds me of a story about a barrister who took a Hong Kong Judge before whom he was appearing to a Bar &Massage Parlour in Macao. Censuring the barrister, the Bar Council pointed out that the position would have been different if the usual courtesies had been extended and the other side had also been present by counsel.
9.20.2008 1:53pm