Best Practices for Judges and ALJs to Ensure Adequacey of the Record

If you attended the 2011 annual conferences of either the National Association of Hearing Officials (NAHO) or the National Association of Administrative Law Judiciary (NAALJ), or ever attended the Fair Hearing Course of the National Judicial College, you know that an issue ALJs and arbitrators regularly wrestle with is whether and how vigilantly to ensure the creation of an adequate record. In a nutshell, "it depends," as we lawyers and neutrals all like to say.  As I've discussed elsewhere, a neutral generally will leave it to counsel to develop the record if the parties are represented, and there will be a greater obligation for the decision maker to step in if the parties are unrepresented, and/or if it is a non-adversarial proceeding involving substantial rights such as to income or licensing.  

Interestingly, the debate has finally extended to--or been formally recognized to extend to--the the judicial Courts as well.  In Turner v. Rogers, No. 10-10, 564 U.S. ___ (June 20, 2011), the U.S. Supreme Court concluded that judges can and must intervene

A Pressured Judiciary--Fact of Life and Cause for Alarm?

As a neutral decision maker of many years, I am always intrigued by the pressures that can be brought to bear on the process, and how judges or decision makers handle that pressure.  When I was a hearing examiner with the New Mexico Public Employee Labor Relations Board both the Director and I would periodically receive communication from the then-Governor's Chief of Staff, urging one resolution or another as "appropriate."  I had also occasionally received calls from or at the behest of a union president who had recommended me to the Board, seeking some particular outcome or action.  These and similar moments inevitably create some tension, but in my experience ALJs are generally able to sidestep the tension.

Because of this background, though, I have both sympathy and a healthy dose of "so what's new" for state court judges who find themselves pressured by an angry electorate.  You may recall, in 2010, three Iowa Supreme Court Justices lost their seats during retention elections in response to Court having earlier ruled that an Iowa statute limiting marriage to one man and one woman violated the State's Equal Protection Clause. It is