Last week, Washington, DC federal judge Beryl Howell ruled on three mass file-sharing lawsuits. Judges in Texas, West Virginia, and Illinois had all ruled recently that such lawsuits were defective in various ways, but Howell gave her cases the green light; attorneys could use the federal courts to sue thousands of people at once and then issue mass subpoenas to Internet providers. Yes, issues of "joinder" and "jurisdiction" would no doubt arise later, but the initial mass unmasking of alleged file-swappers was legitimate.
Howell isn't some one-dimensional industry shill; she was a philosophy major at Bryn Mawr, has three kids, and her husband works as a producer for National Geographic Television & Film. But lobbying money tends to raise questions when the lobbyists move back into public life.
Many judges were previously lawyers, and they are not required to recuse themselves from areas in which they previously litigated or lobbied unless they meet certain conditions. Those conditions are spelled out in Title 28, part I, chapter 21, section 455 of the US Code:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
Having worked with the RIAA rather than the small movie producers bringing the current suits, and having worked for the industry on legislation rather than litigation, Howell does not appear to have any direct stake in these particular cases. And all judges come to their work with a personal perspective and a cast of mind.
Still, years of paid work for particular corporate interests could certainly be perceived as having undue influence on a judge's approach. For instance, Howell's recent ruling was concerned that P2P lawyers simply couldn't afford lawsuits if they had to file their $350 cases against every IP address separately. "It is highly unlikely that the plaintiffs could protect their copyright in a cost-effective manner," she noted.