The Wall Street Journal came to Judge Alex Kozinski’s defense, to wit:
1. The judge was using a file server; it was not a website. Funny, the judge referred to it as a site in his discussions with a reporter. This distinction is neither important nor is it the issue.
2. The judge didn’t know the site was public. Fair enough. Not really the issue.
3. A plaintiff’s lawyer brought the site to the attention of the LA Times. Why is anyone surprised by this? Not the issue.
4. Raunchy is not pornographic. Ah, but not really the issue.
So, what is the issue?
The issue is the same one discussed in the original posting here: judicial temperament, i.e. conflicts and all. Judge Kozinski is one of our finest federal judges. And he has a remarkable wit that has shone through in his opinions and law review articles. But, that wit is elegant. The “raunchy” jokes saved wherever do not reflect well on the good judge. Discretion is the greater part of credibility. And when we sit in judgment of pornographers, we had best have a fairly pristine record, including raunch-free. Remember, pornographic is in the eye of the beholder.
Conflicts are resolved one of two ways: Don’t or Disclose. Judge Kozinski did neither vis-a-vis his humor files, and that’s what landed him in this controversy. That he could hear the case with integrity was not and is not the issue. He still has an obligation to manage his own judicial conflicts.
And so the good judge and his experience offer several important lessons: The Internet is not truly private. When someone sends you raunchy humor, and no one escapes this lack of judgment from those who have our e-mail addresses, delete works really well. When in doubt, disclose.  Defenses aside, Judge Kozinski cannot escape the perception that he looks silly, in everything from his taste in humor postings to his feeble and somewhat inconsistent defenses. We are disappointed despite the server vs. website distinction and no matter who the source. We expect better from a judge of his caliber.
About mmjdiary
Professor Marianne Jennings is an emeritus professor of legal and ethical studies from the W.P. Carey School of Business at Arizona State University, retiring in 2011 after 35 years of teaching undergraduate and graduate courses in ethics and the legal environment of business. During her tenure at ASU, she served as director of the Joan and David Lincoln Center for Applied Ethics from 1995-1999. In 2006, she was appointed faculty director for the W.P. Carey Executive MBA Program. She has done consulting work for businesses and professional groups including AICPA, Boeing, Dial Corporation, Edward Jones, Mattel, Motorola, CFA Institute, Southern California Edison, the Institute of Internal Auditors, AIMR, DuPont, AES, Blue Cross Blue Shield, Motorola, Hy-Vee Foods, IBM, Bell Helicopter, Amgen, Raytheon, and VIAD.
The sixth edition of her textbook, Case Studies in Business Ethics, was published in February 2011. The ninth edition of her textbook, Business: lts Legal, Ethical and Global Environment was published in January 2011. The 23rd edition of her book, Business Law: Principles and Cases, will be published in January 2013. The tenth edition of her book, Real Estate Law, will also be published in January 2013. Her book, A Business Tale: A Story of Ethics, Choices, Success, and a Very Large Rabbit, a fable about business ethics, was chosen by Library Journal in 2004 as its business book of the year. A Business Tale was also a finalist for two other literary awards for 2004. In 2000 her book on corporate governance was published by the New York Times MBA Pocket Series. Her book on long-term success, Building a Business Through Good Times and Bad: Lessons from Fifteen Companies, Each With a Century of Dividends, was published in October 2002 and has been used by Booz, Allen, Hamilton for its work on business longevity. Her latest book, The Seven Signs of Ethical Collapse was published by St. Martin’s Press in July 2006 and has been a finalist for two book awards.
Her weekly columns are syndicated around the country, and her work has appeared in the Wall Street Journal, the Chicago Tribune, the New York Times, Washington Post, and the Reader's Digest. A collection of her essays, Nobody Fixes Real Carrot Sticks Anymore, first published in 1994 is still being published. She has been a commentator on business issues on All Things Considered for National Public Radio.
She has served on four boards of directors, including Arizona Public Service (1987-2000), Zealous Capital Corporation, and the Center for Children with Chronic Illness and Disability at the University of Minnesota. She was appointed to the board of advisors for the Institute of Nuclear Power Operators in 2004 and served on the board of trustees for Think Arizona, a public policy think tank. She has appeared on CNBC, CBS This Morning, the Today Show, and CBS Evening News.
In 2010 she was named one of the Top 100 Thought Leaders in Business Ethics by Trust Across America. Her books have been translated into four different languages. She received the British Emerald award for authoring one of their top 50 articles in management publications, chosen from over 15,000 articles.
Personal: Married since 1976 to Terry H. Jennings, Maricopa County Attorney’s Office Deputy County Attorney; five children: Sarah, Sam, and John, and the late Claire and Hannah Jennings.
