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Scalia, Hamdan and the Principles of Subject Matter Recusal

Flanagan, Brian (2007) Scalia, Hamdan and the Principles of Subject Matter Recusal. Denning Law Journal, 19. pp. 149-170. ISSN 0269-1922

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Abstract

Despite its moral immediacy, there are serious theoretical objections, best described as "realist," to an expansive conception of judicial open-mindedness. Almost invariably, the normative basis of judicial impartiality is traced to what is described as "natural justice"; specifically the celebrated maxims of nemo iudex in causa sua and audi alteram partem. But the relationship of this moral bedrock to the exigencies and settled practices of constitutional adjudication is far from straightforward. In Part I, the article proceeds with a doctrinal analysis of the legality of Justice Antonin Scalia's decision to sit in the case of Hamdan v. Rumsfeld notwithstanding his prior comments on legal questions ostensibly related to its subject matter. Taking a broader perspective, Part II considers whether objections to Justice Scalia's participation in Hamdan can be reconciled with the nature of appellate adjudication and, in relation to dissenting opinions, with an established feature of adjudicative practice in most common law jurisdictions.

Item Type: Article
Keywords: Scalia; Hamdan; Principles of Subject Matter Recusal;
Subjects: Social Sciences > Law
Item ID: 2982
Depositing User: Brian Flanagan
Date Deposited: 20 Jan 2012 09:05
Journal or Publication Title: Denning Law Journal
Publisher: University of Buckingham Press Ltd
Refereed: Yes
URI:

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