SCALIA, HAMDAN AND THE PRINCIPLES OF SUBJECT MATTER RECUSAL

The point of judicial recusal is at once obvious and elusive.  The idea of a partial judge immediately grates on our sense of fairness.  Almost invariably, the normative basis of judicial impartiality is traced to what is described as ‘natural justice’;1 specifically the celebrated maxims of nemo iudex in causa sua2 and audi alteram partem.3  But the relationship of this moral bedrock to the exigencies and settled practices of constitutional adjudication is far from straightforward.  This article will focus on the implications of the latter principle – perhaps best translated as a standard of judicial open-mindedness regarding the subject matter of a dispute.  Despite its moral immediacy, there are serious theoretical objections, best described as ‘realist,’ to an expansive conception of judicial open-mindedness.  Likewise, at a practical level, the institution of the dissenting opinion can be seen as diluting the duty to keep an open mind, at least in jurisdictions such as the US where judges are expected to exhibit relatively little deference towards previous decisions in which they were outvoted

The Effect of Minority Preferences on the White Applicant: A Misplaced Consensus?

In recent years, a consensus has developed among both affirmative action's advocates and opponents that in relation to the typical white applicant, the effects of minority preferencing are minimal. In this essay, the aim is to clarify the mathematics of affirmative action's impact on majority applicants, and to flag the distinction between that question and affirmative action's opportunity cost. First, the essay establishes the level of agreement among judges and academics on the triviality of affirmative action's effect on the regular white applicant's prospects of success. Second, it demonstrates how the prevailing position on the impact of minority preferencing on the white applicant is flawed - as regards both the calculation of relative admission likelihood and the application of the matriculant yield variable. Making use of a number of case studies reviewed in the literature, it shows how those studies, properly understood, convey a rather different picture of the arithmetic of minority preferencing. The essay concludes by challenging the tendency to take the effects of affirmative action (on both preferred and non-preferred applicants) as exclusively indicative of its costs

Judicial Globalization and Perceptions of Disagreement: Two Surveys

Using data from a 2011 judicial survey that drew responses from the entire New Zealand Supreme Court, I model the Court’s practice of transnational argument. The data suggest that whereas foreign law often appears to contribute to the Court’s legal conclusions, at times its contribution derives from an associated social reward, and at others is flatly illusory. I argue that these findings, in tandem with those of the larger survey, indicate that the law reports systematically misrepresent all judicial disagreement as legal disagreement, thus lending support to the claim that in controversial cases, the law is indeterminate

Scalia, Hamdan and the Principles of Subject Matter Recusal

Despite its moral immediacy, there are serious theoretical objections, best described as "realist," to an expansive conception of judicial open-mindedness. Almost invariably, the normative basis of judicial impartiality is traced to what is described as "natural justice"; specifically the celebrated maxims of nemo iudex in causa sua and audi alteram partem. But the relationship of this moral bedrock to the exigencies and settled practices of constitutional adjudication is far from straightforward. In Part I, the article proceeds with a doctrinal analysis of the legality of Justice Antonin Scalia's decision to sit in the case of Hamdan v. Rumsfeld notwithstanding his prior comments on legal questions ostensibly related to its subject matter. Taking a broader perspective, Part II considers whether objections to Justice Scalia's participation in Hamdan can be reconciled with the nature of appellate adjudication and, in relation to dissenting opinions, with an established feature of adjudicative practice in most common law jurisdictions

Judicial Rights Talk: Defects in the Liberal Challenge to Constitutional Review

A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front

SB14-19/20:Resolution Establishing Official Board on Member Organizations Recognition Criteria

SB14-19/20: Resolution Establishing Official Board on Member Organizations Recognition Criteria passed 21Y-0N-0A in a Roll Call Vote in the October 9, 2019 ASUM Senate Meeting