Journal of Law and Policy


Jackie Kushner


In 2011, environmentalist lawyer Steven Donziger was sued in a retaliatory lawsuit by the oil company Chevron, following his securement of a multibillion-dollar award against the company for its environmental harms in Ecuador. In a case rife with judicial impropriety, Donziger was ultimately charged with criminal contempt of court and his charges were prosecuted by a private attorney. These suits exemplify the growing problem of powerful corporations using legal tactics to retaliate against activists and undermine the legitimacy of the legal system. Federal judges contribute to the problem by misusing the extensive power they hold in distinguishing criminal from civil contempt, as well as appointing private prosecutors. The impartiality of the judiciary is of paramount importance in ensuring the legitimacy of the justice system, meaning even the appearance of judicial impropriety may be detrimental to the system as a whole. This Note argues that the criminal versus civil contempt classification should be clearly defined based on the intent of the contemptor. It also proposes that public prosecutors, rather than the judiciary, should be responsible for the appointment of private prosecutors. Both of these reforms would have better protected Donziger from the partiality of the judges involved in his cases and would safeguard the public’s trust in the federal judiciary as a legitimate means to achieving justice in the United States.