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30 Rev. Litig. 671 (2010-2011)
Why Judicial Disqualification Matters - Again

handle is hein.journals/rol30 and id is 679 raw text is: Why Judicial Disqualification Matters. Again. Charles Gardner Geyh* I. INTRODUCTION ................................ ...... 672 II. THE HISTORY OF JUDICIAL DISQUALIFICATION .. ........... 677 A. Regime 1: Common Law Presumption ofImpartiality......... ......................... ...........677 B. Regime 2: Statutory Conflicts ofInterest ..... .....679 C. Regime 3: An Experiment with Disqualification Procedure ....................................681 D. Regime 4: The Appearance ofPartiality .... .......686 III. THE CURRENT STATE OF THE APPEARANCES-BASED DISQUALIFICATION REGIME ................. ............ 690 A. Fractures Within the Bench and Bar ....... ..........694 B. Fracture Between the Bench and Bar, and the Public ....701 1. The Historical Divide.....................701 2. The Legal Divide.........................702 3. The Psychological Divide ........... ............708 C. Fractures Within Public Attitudes ....................710 IV. PROPOSED ALTERNATIVES TO THE APPEARANCES-BASED DISQUALIFICATION REGIME. .............................712 A. Revitalizing the Presumption ofImpartiality ... .....713 B. Reinvigorating a Conflicts Regime ...............715 C. Resurrecting a Procedural Regime ...............718 1. The Case for Procedural Reform .. ..............719 2. Procedural Reform and the Public Confidence Puzzle... ..................721 3. The Future of Procedural Reform ........ ........727 V. CONCLUSION ........................................732 * Associate Dean for Research and John F. Kimberling Professor of Law, Indiana University Maurer School of Law. I'd like to thank Bert Brandenburg, Steve Burbank, Amanda Frost, Jim Gibson, Steve Lubet, Roy Schotland, and Jeff Stempel for their comments, and Jenna Norden, Mark Plantan and Laura Heft for their research assistance. Thanks likewise to Mike Martin for organizing and moderating the panel at the annual meeting of the Association of American Law Schools, where papers giving rise to this symposium were presented. From 2007 to 2009, I served as consultant to and director of the American Bar Association's Judicial Independence Project, under the auspices of the ABA Standing Committee on Judicial Independence. The views expressed here are mine alone, and not necessarily those of the Judicial Independence Project, the ABA Standing Committee on Judicial Independence, or the ABA.

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