Re: Kaplan's Opinion [Plus an Apology]

Tyler Ochoa <tochoa[_at_]LAW.WHITTIER.EDU> wrote:
>>>>>

> More fundamentally, you are way out of line here in criticizing a > federal judge who went out of his way to take seriously an argument > that most federal judges would have rejected out of hand. You may > not agree with Judge Kaplan's opinion, but suggesting that he behaved > unethically is beyond outrageous. <<<<<

>>> Bryan Taylor <bryan_w_taylor[_at_]yahoo.com> 10/21 1:34 AM >>> replied:
>>I am not suggesting he behaved unethically as a reaction to his opinion. In fact, I first stated my beliefs on this before the ruling came out. I sorry if you think it is taboo to make this claim. I would not make it flippantly - I do hold most judges in high regard. Regardless, I would have recused myself if I were him. I think he made the wrong call on a decision of judical ethics.

>>There was a motion to recuse. I think it was valid given the facts, which are not in dispute, and given the law. The judge wrote a 49 page motion deny recusal whose reasoning I don't agree with. Should I pretend I do?

>>The judge represented plaintiff Warner Brothers on several occasions and his parter helped design the DVD antitrust strategy while Kaplan was on staff in the same department. From this, a reasonable person would have doubts about his cozy relationship with the studios. At the very least, you have to admit that the plaintiffs got pretty lucky to get one of their former attorneys.
<<<<<

My apologies to Mr. Taylor. I was not aware of the motion to recuse, or the facts regarding Judge Kaplan's previous employment. I therefore believed he was criticizing his ethics solely on the basis of the DeCSS opinion, which is what I objected to. I do not think it is taboo to criticize a judge for failing to recuse himself when there is a factual basis for making the claim.

[In my defense, allow me to point out that in the context of a message devoted entirely to criticizing the merits of the opinion, without any explanation of the grounds for the recusal motion, I think my misinterpretation of his remark was understandable. Nonetheless, I apologize for the misunderstanding.]

Given the facts explained above, I agree that Judge Kaplan should have recused himself. The ethical standard is that a judge should avoid even the appearance of impropriety. Even if Judge Kaplan believed that he could be impartial, his former employment arguably creates an appearance of impropriety.

Having said that, I think it is unlikely that having a different judge would have led to a different result. I will be very surprised if the Second Circuit overturns it on appeal.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Wed Oct 25 2000 - 19:14:37 GMT