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The Ethical Dilemma of the Highest Court: Could Congress Constitutionally Impose a Binding Code of Ethics on the United States Supreme Court?
No full textIn response to mounting ethical concerns about Supreme Court Justices, the Court introduced its own Code of Conduct in November 2023, likely prompted by recent controversies involving Justice Clarence Thomas. This code aimed to dispel the public perception that Supreme Court Justices operate without ethical boundaries. The code mirrors the Code of Conduct for United States Judges, established in 1973, outlining ethical rules and principles for the Justices. It shares the same five canons and includes most provisions from the lower federal judges’ code, albeit with some differences. Although the Court’s ability to establish its own code is unquestioned, this comment examines the separation of powers issues regarding Congress’s authority to impose such a code on the Supreme Court. This comment will delve into recent ethical criticism against the Justices, explore limits on congressional authority, and examine constitutional mechanisms for addressing ethical violations
The Motherhood Myth, Traditional Firms, and the Underrepresentation of Women
No full textThis Article explains that the motherhood narrative—that women are underrepresented in partnership and leadership ranks of law firms because they are their children’s primary caregivers—is a myth. After detailing how the motherhood myth has been used as an excuse for poor retention of women, the Article provides evidence of an alternative explanation: traditional firms—characterized by extreme work expectations and reliance on the unpaid labor of attorneys’ stay-at-home spouses or partners (SAHSs)—are structurally and culturally hostile to women. To thrive in a traditional firm, an attorney needs a SAHS—not just an equal parenting partner as the motherhood myth claims. Traditional firms’ demand for and reliance upon SAHSs drives out women.
Decades of small interventions at the margins have not and cannot stem the attrition of women from traditional firms. Quantifying, tracking, and working to decrease firms’ dependence on SAHSs can. This Article makes the case that the goal of reducing SAHS reliance will motivate at least some firms, will not harm clients, and is the linchpin for improving the representation of women in firm partnership and leadership roles. The Article closes by explaining the role that bar associations (and other organizations), law firms, and attorneys can play in gathering, assessing, reporting, and using SAHS reliance data. The effort of any one of these groups has the ability to spur meaningful change in the retention and promotion of women in law firms
Prurient Interests: The Law of Sexual Desire
No full textA recent book by George Fisher tries to explain the history of drug and alcohol laws in terms of social and legal norms against whatever can rob people of rational thinking; this article extends the analysis to laws about sexual behavior in the last two centuries, their rise and fall
Emergency Oversight
No full textThis Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e. price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes arising out of these domestic economic programs. The ECA took a minimalist approach to oversight of agency decisions; it intervened to protect individual rights only so far as it could do so without impairing the overall regulatory scheme. The court embraced the view that its responsibility was to protect constitutional rights and guard against wartime inflation. The Supreme Court fully endorsed the approach of the ECA. This vision of courts and agencies working in harmony during a crisis stands in stark contrast to their contemporary relationship.
This Article makes two significant contributions. The first is a descriptive analysis of the relationship between administrative agencies and courts with respect to price control and rationing during WWII. That relationship, described in detail here for the first time, provides a valuable historical comparison for the contemporary era, where the courts similarly found themselves navigating expansive economic regulation in the context of national emergencies. During COVID, the court took a far more interventionist, restrictive approach towards limiting agency action. That tees up the second contribution of the paper, which is to raise the normative question: Is it desirable for courts to strictly limit administrative responses to national emergencies? The historical comparison cannot provide an answer, but it highlights another, more collaborative model for balancing individual rights with effective and efficient governance
Dispute System Counter-Design
Full text linkThis article introduces the concept of “counter-design” as a practice of challenging and reimagining dispute resolution systems from the ground up and from the inside out. Counter-design provides a critical response to traditional Dispute System Design (DSD) by positing that designs necessarily privilege certain perspectives and interests over others, even when designers follow best practices and ethical principles. Through practices of counter-design, individuals interact with dispute resolution systems, not merely to seek resolutions within the existing framework, but to actively challenge and reshape these systems from within. This concept underscores the dynamics of power, inclusion, and representation within DSD. Counter-design practices—identified here as unveiling, tagging, and assembling—serve as tools to pierce illusions, record dissent, and build collective action against systemic biases within dispute resolution mechanisms. By foregrounding counter-design, this paper shifts the discourse in dispute resolution studies from a focus on neutrality and procedural fairness to a more critical examination of how systems can perpetuate inequalities. It urges scholars and practitioners to reconsider the role of DSD, not as a neutral practice of designing just systems, but as a situated practice that reflects and potentially reinforces existing power structures. This reconceptualization of DSD through the lens of counter-design is crucial for advancing the field in a world where control over the design of dispute resolution systems is highly concentrated. It calls for an approach to dispute resolution that acknowledges and addresses its inherent biases and works towards more genuinely equitable outcomes
