Johnston, J
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 via email: “We’re very proud of the activities and programs of the Law & Economics Center.”
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.
Green energy’s ‘false promise’
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.”
Stacked panels?
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
“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.”
This story was originally published by The Center for Public Integrity, which is a nonprofit, nonpartisan investigative news organization in Washington, D.C. It was reported and written byChris Young, Reity O’Brien and Andrea Fuller; John Dunbar contributed.
Copyright 2013 The Center for Public Integrity