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The Danger of Creating Rules out of "Exceptional Cases":  At Blog of Legal Times, Tony Mauro comments on Chief Justice Roberts' dissent in Caperton v. Massey Coal Co.  In his dissent, the Chief Justice warned that when the Court lays down a rule that applies to a seemingly rare case, it can sometimes spawn a lot of litigation by parties who think their case is just as exceptional.  Mauro reports that the example offered in Roberts' dissent, United States v. Halper, was a decision that Roberts had argued and won back in 1989.  Halper addressed whether a convict's double jeopardy rights were violated when a civil fine under the False Claims Act bore no relation to his Medicaid fraud conviction.  The Supreme Court held that Halper's double jeopardy rights had been violated in this "rare case."  Eight years later, in Hudson v. United States, the Court abandoned the Halper rule.  Mauro reports that Chief Justice Roberts saw parallels between Halper and Caperton, and predicted "I believe we will come to regret this decision as well, when courts are forced to deal with a wide variety of Caperton motions, each claiming the title of 'most extreme' or 'most disproportionate.'" 

Racial Challenges to the Death Penalty:  At Sentencing Law and Policy, Doug Berman posts on a North Carolina bill that would allow death-row inmates to dredge up the old racial challenges to death sentences that the Supreme Court shot down in McCleskey v. Kemp, 481 U.S. 279 (1987).  James Romoser, of the Winston-Salem Journal, reports that the "North Carolina Racial Justice Act," was approved 7-5 by a House committee and will move to a different committee before a full House vote.  Supporters claim to like the bill because "it takes steps toward eradicating the problem of racial bias in the capital-punishment process," although in reality it is more likely they simply want to eradicate capital punishment itself.  Opponents argue that statistics can be misleading. Berman reports that Kentucky has a similar death penalty racial justice act on the books, and Kent adds that the New Jersey Supreme Court had "adopted something similar judicially" back when that state had capital punishment, at least in theory.  

The newspaper story says, "Supporters of the bill said that there is vast evidence suggesting that race has historically been a factor in the use of capital punishment, both nationwide and in North Carolina." Retired UNC Professor Elliot Cramer previously testified to the legislature,
 
Given the large number of possible relevant variables and the small numbers of homicides in each judicial district, I do not see the possibility of any statistical study being able to adequately draw conclusions about racial disparities in administration of the death penalty....
I am agnostic on the issue [of the death penalty]. I am committed to the proper use of statistical methodology and I do not believe there is any statistical support for the view that the Death Penalty discriminates against African-Americans or anyone else.

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Not saying that I agree with Kennedy's opinion or disagree with Roberts', but it must be noted that court orders are coercive. I doubt many of us would like to be subjected to a court order directing the payment of money etc. if the judge issuing said order were the beneficiary of lots of money spent to elect him or her.

Relatedly, a lot of lawyers joke about "home-cooking", but in a nation of laws, such jokes are deeply troubling.

To a certain extent, these issues are unavoidable, but certainly the idea that people should not be subjected to coercive orders emanating from a judge who received a lot of benefit from a litigant or his affiliates is not the worse idea that's ever come down the pike, nor is it without a lot of appeal.

The analysis doesn't change much if the order is not coercive either. Who wants to have their claim evaluated by a judge who has been benefited by a litigant either?

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