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Recusal Reform: Treating a Justice\u27s Disqualification as a Legal Issue
Full text linkThis article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.
The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. These amendments aimed to establish an objective standard for recusal, requiring judges to step aside when their impartiality might reasonably be questioned. Despite these changes, however, the authors point out that the current practice still problematically allows Justices to make unreviewable recusal decisions. Next, the authors conduct a comparison of the U.S. recusal process with those in other common law jurisdictions, revealing that many other nations have adopted collective decision-making for recusal issues at their highest courts. Finally, the authors delve into constitutional concerns, discussing whether the current self-recusal procedure violates due process by failing to guarantee an impartial tribunal. The article also addresses potential separation of powers issues, arguing that Congress has the authority to regulate judicial ethics, including recusal procedures, without infringing on judicial independence.
The article concludes that reforming the recusal process is crucial for maintaining public trust in the judiciary. By treating recusal as a legal issue to be decided by the full Court, rather than as a personal ethical decision by individual Justices, the Supreme Court can uphold its duty to provide impartial justice and reinforce its legitimacy
The U.S. Supreme Court and the Merger Efficiency “Defense”
No full textFirms’ principal motives for merging are not to increase market power, but rather to improve firm outcomes through changes in internal operations or structure. Of the 17000+ mergers that occur annually in the U.S., 90% or more have no expectation of an anticompetitive price increase or output reduction. They can profit only by better performance. As a result, the way that we analyze mergers puts the cart before the horse. Rather than using an efficiency “defense” to a prima facie unlawful merger, we should consider how the merger affects a firm’s operations and performance. That is in fact the position that the Supreme Court has taken in its analysis of merger efficiencies
When Money Isn\u27t Money: The Second Circuit\u27s Gutting of the Discharge-For-Value Defense for Erroneous Payments
No full textHow Silicon Valley Bank Discounted the Discount Window: An Analysis of the Federal Reserve\u27s Discount Window Solution and Proposals to Reform It
No full textLegal Research Methods for the English-Speaking Caribbean
No full textLegal Research Methods for the English-Speaking Caribbean identifies the sources of legal information for the English-speaking Caribbean and provides unique coverage of the independent states and overseas territories in this jurisdiction with a shared history of British colonialism.
It is often challenging to know where and how to find the legal information of smaller jurisdictions like the Caribbean nations, especially in instances where this information is still predominantly available only in print. This publication will help researchers overcome this challenge and barrier. It describes and provides the sources for locating legal information, such as case law, statutes, court rules, and secondary sources. Also included are the bibliographic information about the print and electronic resources available for these countries.
Legal Research Methods for the English-Speaking Caribbean also provides in-depth coverage of the Caribbean legal landscape, including courts, legal education, local government laws, and the regional and international agreements that these Caribbean states are parties to. The Caribbean region is undergoing rapid social, political, and economic changes, often faster than the required legislative changes. The selected emerging areas of law covering aviation/drones, cannabis, climate change, cryptocurrency, and space law/space tourism are therefore extremely relevant
Standing on Shaky Ground: How a Conservative Strategist Used Associational Standing to Overhaul Affirmative Action
No full textIn Students for Fair Admissions v. Harvard , the U.S. Supreme Court effectively ended race- conscious admissions policies in higher education. While commentary has focused on the Equal Protection implications of the ruling, far less attention has been paid to the Court’s threshold determination: that Students for Fair Admissions (SFFA)—an organization without any named Asian American student plaintiffs—had standing to sue. This Comment examines the doctrine of associational standing, the judicially created mechanism that allowed SFFA to bring suit on behalf of unnamed members, and critiques the Court’s failure to meaningfully address whether standing was properly established.
Section I provides an overview of Article III standing and traces the development of associational standing since Hunt v. Washington State Apple Advertising Commission . Section II recounts the formation and strategy of SFFA , highlighting the procedural sleight of hand that enabled it to serve as plaintiff. Section III argues that the Court’s perfunctory standing analysis in SFFA is both legally and normatively inadequate. By sidestepping fundamental questions about organizational standing, the Court has left the doctrine vulnerable to exploitation by ideologically motivated entities—raising serious concerns about who can access the courts and under what conditions
Artificial Intelligence and Procedural Due Process
No full textArtificial intelligence (AI) violates procedural due process rights if the government uses it to deprive people of life, liberty, and property without adequate notice or an opportunity to be heard. A wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refuses to disclose the reasons why it denied a person bail, public benefits, or immigration status, serious due process concerns arise. If the government delegates such tasks to an AI system, the due process analysis does not change. One asks whether a person received adequate notice and an opportunity to be heard. And further, where applicable, one must ask whether the risk of error and the costs to rights justify not using interpretable and adequately tested AI.
Nor is it necessary for AI or other automated systems to operate in a “black box” manner without providing people with notice or a way to meaningfully contest decisions. There is a ready alternative: “glass box” or interpretable AI systems present results so that users know what factors the system relied on, what weight the system gave to each, and the strengths and limitations of the associations or predictions made. Whether it is a criminal investigation or a public benefits eligibility determination, interpretable AI can ensure that people have notice and can challenge any error, using the procedures available. And such a system can be more readily checked for errors. Due process demands a more robust opportunity to contest government decisions that raise greater reliability concerns. We need to know how reliably an AI system performs under realistic conditions to assess the risk of error.
Longstanding due process protections and well-developed interpretable AI approaches can ensure that AI systems safeguard due process rights. Conversely, due process rights have little meaning if the government uses “black box” systems that are not fully interpretable or tested for reliability and, as a result, cannot comply with procedural due process requirements. So far, there has been little government self-regulation of AI. In response, judges have begun to enforce existing due process rights when AI or other automated decision-making processes are used. As judges address due process challenges to AI, they should consider the interpretability and reliability of AI systems. Similarly, as lawmakers and regulators examine the government’s use of AI systems, they should ensure safeguards, including interpretability and reliability, to protect our due process rights in an increasingly AI-dominated world