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.

Codifying decentralized forms of law, such as the common law and customary international law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules and therefore to justify and explain codification. The literature, however, overlooks codification’s distributive consequences. In so doing, it misses a common motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how it affects the general welfare.

This Article fills the gap in the literature by examining three rationales for why states codify customary international law: (1) a desire to clarify the substantive content of customary law in order to promote cooperation (the Clarification Thesis); (2) a desire to enhance compliance through mechanisms such as monitoring, enforcement, and dispute-resolution provisions (the Compliance Thesis); and (3) a desire to define the content of customary rules for a state’s individual benefit (the Capture Thesis). While codification’s proponents conceive of the enterprise in terms of the Clarification and Compliance Theses, I argue that states frequently use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare. As states with divergent views on how to interpret a customary rule pursue conflicting codification efforts, they entrench schisms in the law along regional or ideological lines, thereby delegitimizing customary rules and increasing fragmentation. Thus, far from being an unqualified boon to benevolent legal ordering, codification can replicate, magnify, or alter the power dynamics present in forming bare customary law. Indeed, the fragmentation of customary law that can result from codification actually prevents a unified understanding of customary law from emerging—the exact opposite of codification’s ostensible purpose. This Article uses the Capture Thesis to explain important developments in customary international law, including the outlawing of the slave trade in the nineteenth century, the rise of bilateral investment treaties, and the inability to reach an agreement on a multilateral investment treaty.