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Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel
Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel
Jeffrey W Stempel
In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …
Chief William's Ghost: The Problematic Persistance Of The Duty To Sit, Jeffrey W. Stempel
Chief William's Ghost: The Problematic Persistance Of The Duty To Sit, Jeffrey W. Stempel
Jeffrey W Stempel
In 1974, the duty to sit -- a doctrine positing that judges should recuse themselves only if the case for disqualification was compelling -- was abolished in federal courts. Then-Justice William Rehnquist's refusal to disqualify himself in Laird v. Tatum (1972) was a partial catalyst in this legal reform, which was consistent with the ABA position on the duty to sit, at least in what I term it's "pernicious" form. Notwithstanding the official abolition of the doctrine, it continues to be invoked, as does the problematic Rehnquist opinion defending his indefensible refusal to recuse in Laird v. Taturm. This article …
"Let's Do The Time Warp Again": Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris
"Let's Do The Time Warp Again": Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris
Grant H Morris
Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients’ interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the “paternalistic attitude” …