Walker on They Did Not Survive a Dinner Party: Judicial Ethics, the Osage Mineral Estate, and What Conscience Required

Lance Walker, Walker Law, PLLC; University of Oklahoma College of Law, has published They Did Not Survive A Dinner Party: Judicial Ethics, the Osage Mineral Estate, and What Conscience Required. Here is the abstract.

Under the Act of June 28, 1906, Congress reserved the mineral estate underlying the Osage Reservation in what is now Osage County, Oklahoma, to the Osage Nation, to be held in federal trust. In October 2025, the Oklahoma Attorney General nonetheless concluded that pore space within the subsurface geological formations underlying Osage County belongs to the surface estate rather than the Osage mineral trust. Five months later, the Osage Nation's own Attorney General reached the opposite conclusion, expressly rejecting the state-law basis for Oklahoma's opinion and grounding his own answer in the federal Act instead. Neither opinion binds the other, and the conflict remains unresolved-leaving a cloud on the Osage mineral estate that persists whether or not the Oklahoma AG opinion is ultimately correct. Billions of dollars in carbon-sequestration value ride on the answer. This piece takes up that unresolved question through an unconventional form: one fictional federal district court opinion, oral argument before the appellate panel, and five fictional appellate opinions, set in October 1906, Oklahoma Territory, deciding a case that never existed, styled after Lon Fuller's The Case of the Speluncean Explorers, and supported by appendices documenting the historical record, the jurisprudential methodology, and the governing ethics standard. Where Fuller used five judges and five jurisprudential frameworks to illuminate how method shapes result in a criminal case under a fictional statute, this piece transplants the same device onto a real 1906 statute and a live property question: does the Osage mineral estate include the void space left behind after coal extraction-and, by direct implication, the limestone pore space now sought for carbon storage? The trial judge, the attorneys, and the 

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Bam on Defending Judicial Speech @UMaineLaw

Dmitry Bam, University of Maine School of Law, has published Seen and Heard: A Defense of Judicial Speech at 11 Liberty U. L. Rev. 765 (2018). Here is the abstract.

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy, the Justices of the United States Supreme Court have consistently remained on the sidelines in contested partisan elections. That is why the events of July 2016 were so surprising. With the 2016 presidential election less than four months away, Supreme Court Justice Ruth Bader Ginsburg shocked everyone when she bluntly spoke out against the Republican presidential nominee, and the ultimate winner of the election, Donald Trump. On multiple occasions, she expressed her disdain for Trump in no uncertain terms, calling Trump a "faker," criticizing Trump's failure to release his tax returns, and even joking that her husband would have suggested moving to New Zealand if Trump were to be elected president. Given the ethical rules and the long-standing norms of judicial behavior, these were jarring statements from a sitting Supreme Court Justice. Immediately, there was a near-unanimous outcry against the propriety of Ginsburg's comments, ultimately leading her to apologize. The chorus of critics included both conservative and reliably leftist pundits, media commentators, legal academics, numerous politicians, and Donald Trump himself. It was not just conservatives who rebuked her statements. Despite her near-mythical status in progressive circles, among the critics were some of Justice Ginsburg's biggest supporters. In an election that saw little bipartisan agreement on almost anything, nearly everyone seemed to agree that Justice Ginsburg's statements violated ethical rules and norms. This Article examines whether Ginsburg's many critics were right. I suggest that the norms may be built on a shaky foundation and grounded in long-abandoned myths about the judicial role and judicial decision-making. The traditional restraints on Supreme Court Justices expressing their own strongly-held political views does not further, or at least does not significantly further, any of the important goals generally served by the ethics codes. While Justice Ginsburg's comments, and comments like hers, may change the way the people view the Court and its Justices, their mere utterance causes little damage to the reputation and standing of the federal judiciary generally, or the Supreme Court in particular. In addition, stifling judicial speech disserves the American people by misleading them about judges and judging and concealing potentially important heuristic information from the electorate.

Download the article from SSRN at the link.