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62 N.Y.U. L. Rev. 237 (1987)
Theories of Judging and Judge Disqualification

handle is hein.journals/nylr62 and id is 251 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 62 MAY 1987 NUMBER 2 THEORIES OF JUDGING AND JUDGE DISQUALIFICATION JOHN LEUBSDORF* Professor Leubsdorf explores the tensions and inconsistencies of current judicial dis- qualification law. He outlines and rejects two theories ofjudicial disqualification based on two theories of the judicial function: political adjudication and cognitive judging. Disqualification under a system of political adjudication, Professor Leubsdorf argues, would threaten the legitimacy ofjudging. He similarly rejects a system based on cogni- tive judging as too mechanical; no judge can totally ignore her own value system. Pro- fessor Leubsdorf concludes that a constrained dialogue theory, with its emphasis on communication between judges, advocates, jurors, scholars, and legislators, provides the best framework in which to rethink disqualification law. He articulates three guid- ing principles: a judge should not decide a case on personal considerations, should be willing and able to consider all relevant arguments, and should not hear a case if she has extrajudicial knowledge of certain relevant facts. Thus, Professor Leubsdorf con- cludes, the constrained dialogue theory can reshape disqualification law to ground it in a tenable view of how judges should decide cases and hence in a tenable view of impartiality. INTRODUCTION To decide when a judge may not sit is to define what a judge is. To define what a judge is is to decide what a system of adjudication is all about. These tasks are ultimately impossible but nevertheless essential. Today, one can scarcely advance the ideal of judicial impartiality without feeling doubts. We all take it for granted that personal values and assumptions help shape every judge's decisions.1 Suggesting that a judge could escape her prepossessions sounds like a throwback to the days when people believed, or pretended to believe, that judges deciding * Professor, Rutgers Law School-Newark. Many thanks to Stephen Diamond, Neil Hecht, Alan Hyde, Lawrence Sager, Kenneth Simons, Aviam Soifer, Kathleen A. Sullivan, and the participants in a faculty colloquium at Rutgers Law School for their help and support. I See, e.g., R. Bernstein, Beyond Objectivism and Relativism 129 (1983) (since prejudices 'constitute our being' ... it literally makes no sense to think that a human being can ever be devoid of prejudices (quoting H. Gadamer, Philosophical Hermeneutics 9 (1976))); text ac- companying notes 71-78 infra. 237 Imaged with the Permission of N.Y.U. Law Review

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