Judicial Recusal and the Court
Later this month, all nine justices will be hearing oral argument on the constitutionality of the Patient Protection and Affordable Care Act and deciding the outcome of the case. But should they? In Caperton v. A.T. Massey Coal Co., the Supreme Court held that a judge of the West Virginia Supreme Court violated the Due Process Clause of the Constitution when the judge failed to recuse himself from a case involving a major campaign contributor. Many cheered the case’s outcome, but Professor Ifill believes Caperton is an “ominous sign” that a majority of the Court fails to understand how dangerous the appearance of impropriety is in the American judicial system. Professor Segall agrees that the judicial recusal system needs reform, but he disagrees with Professor Ifill over what amounts to an appearance of impropriety. As the need for reform becomes more apparent in light of the constitutional challenges to the Affordable Care Act, Professor Ifill and Professor Segall disagree over whether Justice Thomas or Justice Kagan ought to recuse themselves from the Court’s upcoming hearings. Their various perspectives highlight the confusion of contemporary recusal doctrine for America’s highest Court and make a strong case that the Court must do a better job of clarifying when a Justice should recuse him- or herself.
America Invents, More or Less?
In September 2011, President Obama signed the most significant patent law overhaul in decades, the America Invents Act. The central...
Climate Change and the Courts
In Climate Change and the Courts, Professors Jason S. Johnston and Heidi M. Hurd debate whether there should be a public...
The Constitutionality of Stop-and-Frisk in New York City
Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of Floyd and Judge Shira A. Scheindlin’s controversial removal from the case. Professor Rudovsky argues that Floyd shows the important role of data and statistical analysis in assessing the constitutionality of stop-and-frisk procedures. He contends that empirical evidence regarding both the factors for and outcomes of stops and frisks in New York demonstrates that either the legal standard is too permissive or police-stop documentation is not truthful. In response, Professor Rosenthal argues that Judge Scheindlin erred in failing to consider evidence of stop-and-frisk’s efficacy—evidence indicating that the NYPD’s stops are based on reasonable suspicion, a standard considerably less demanding than “preponderance of the evidence.” Additionally, Rosenthal argues that Judge Scheindlin should have considered differential offending by race or other potentially nondiscriminatory explanations for the higher stop rates of minorities.
Continuing the Conversation on Faithless Electors
The recent lively exchange about the Electoral College among Professors Levinson, McGinnis, and Lowenstein cause my heart to leap. It...