The Unintended Consequences of Feingold-Kyl

Josh Wright —  17 December 2007

Gail Heriot (Right Coast) and John Fund discuss the Feingold-Kyl amendment to the pending bill which would give federal judges a long-awaited payraise amidst concerns that pay levels were to low to attract and retain a high quality judiciary. The FK amendment, as explained by Fund, “would bar any federal judge from accepting more than $1,500 in food, lodging or other reimbursement for any travel event not sponsored by a government, and more than $5,000 in a year.” The FK amendment appears to be related to the “junk ethics” movement which raises its head from time to time to throw charges at institutions like the George Mason Law and Economics Center, FREE, and others.

These educational programs have been adequately defended here and elsewhere in the past. However, it is worth emphasizing a point that both Heriot and Fund recognize but the FK amendment’s supporters apparently fail to understand: it is not very likely that the FK amendment will result in fewer educational programs for judges in the medium to long run. It is true, as Heriot notes in particular, that one obvious implication of the FK amendment’s funding limitations is that private schools (especially smaller ones) will suffer and no longer be able to attract judges to these programs. While it is no solace for the disfavored private schools, the amendments produce the greatest benefits for smaller public schools that would not be likely to attract federal judges in the absence of these programs. My guess would be that the net effect of the amendment is trivial (again, not much solace to the disfavored private schools) as growth in the number of new programs and expansion of existing programs at public schools offset the reduction in competition from private schools. There appears a healthy demand for the services provided by these programs and no shortage of high quality public law schools with the resources to produce them. One should not be surprised by a subsequent increase in the number of new state programs as well as expansion of existing programs to satisfy demand. I wonder if that is what Feingold & Kyl had in mind?

*Disclosure: I have in the past received summer research money from the George Mason Law & Economics Center.