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The Reluctant Recusants: Two Parables of Supreme Judicial Disqualification


Ross E. Davies


George Mason University School of Law; The Green Bag


Green Bag, Vol. 10, No. 1, pp. 79-107, Autumn 2006
George Mason Law & Economics Research Paper No. 06-51

Abstract:     
It is a recurring irony of judicial recusal - a mechanism meant to reduce real and apparent bias in adjudication - that it inspires strikingly partial arguments by both its proponents and its opponents in particular cases or controversies. This partiality is driven only partly by the differences that underlie all legal disputes, differences of interpretation, opinion, expertise, and knowledge of the facts. It is also driven by direct competition for the levers of judicial power. Recusal is, after all, the only lawful way to remove an important vote from an important case - other than an impossibly speedy impeachment in the House and conviction in the Senate. This is an appealing or frightening prospect (depending on one's position) in a close case, and thus worth fighting for or against (again, depending on one's position). But voting - credibly impartial voting - is the only power a judge has, making it well worth defending. So, the stakes are high and the associated incentives are straightforward and potent. Two examples involving Supreme Court Justices and their critics illustrate the phenomenon.

Number of Pages in PDF File: 30

Keywords: Supreme Court, recuse, recusal, disqualify, disqualification, ethics, judges, Senate, Congress, NAACP, impeach, impeachment, justice

JEL Classification: H11, H56

Accepted Paper Series


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Date posted: November 17, 2006  

Suggested Citation

Davies, Ross E., The Reluctant Recusants: Two Parables of Supreme Judicial Disqualification. Green Bag, Vol. 10, No. 1, pp. 79-107, Autumn 2006; George Mason Law & Economics Research Paper No. 06-51. Available at SSRN: http://ssrn.com/abstract=945552

Contact Information

Ross E. Davies (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
The Green Bag ( email )
6600 Barnaby St., NW
Washington, DC 20015
United States
HOME PAGE: http://www.greenbag.org
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