Judicial Recusal

Principles, Process and Problems

R Grant Hammond

• Publisher: Hart Publishing
• Year: 2009
• Print ISBN: 9781841132600
• eBook ISBN: 9781847315182
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The doctrine of judicial recusal enables - and may require - a judge who is lawfully appointed to hear and determine a case to stand down from that case, leaving its disposition to another colleague or colleagues. The subject is one of considerable import and moment, not only to 'insiders' in the judiciary, but also to litigants and their lawyers. Understanding the principles which guide recusal is also to understand the fundamentals of judging in the common law tradition. The subject is therefore of considerable interest both at practical and theoretical levels, for it tells us most of what we need to know about what it means "to be a judge" and what the discharge of that constitutional duty entails. Unsurprisingly therefore, the subject has attracted controversy, and some of the most savage criticisms ever directed at particular judges. The book commences with an introduction which is followed by an analysis of the essential features of the law, the legal principles (common-law origins, the law today in the USA, UK and Commonwealth) and the difficulties which currently arise in the cases and by operation of statute. The third part looks at process, including waiver, necessity, appellate review, and final appeals. Three specific problem areas (judicial misconduct in court, prior viewpoints, and unconcious bias) are then discussed. The book ends with the author's reflections on future developments and possible reforms of recusal law.

Table of contents

• Prelims
• Foreword
• Preface
• Acknowledgements
• Contents
• Table of Cases
• Part A Introduction
• 1 The Essential Questions
• Part B Principles
• 2 The Evolution of the Present Law in the Common Law World
• 3 The Classification of the Present Day Recusal Principles in the British Commonwealth
• 4 Automatic Disqualification in the British Commonwealth
• 5 Apparent Bias in the British Commonwealth
• 6 Federal Recusal Law in the United States of America
• Part C Process
• 7 The Importance of Process
• 8 Prudence: If in Doubt, Out?
• 9 Practice Rules and Protocols
• 10 Disclosure
• 11 Waiver
• 12 Necessity
• 13 Appellate Review of Lower Court Decisions
• 14 Recusal Procedure in Appellate Courts
• Part D Some Specific Problem Areas
• 15 Judicial Misconduct in Court: Judges Who Go Too Far
• 16 Prior Viewpoints
• 17 Unconscious Bias
• Part E The Future of Recusal Law
• 18 Possible Reforms
• 19 Judges or Legislators?
• Appendix A The Australasian Protocol
• Appendix B 28 USC § 144
• Appendix C 28 USC § 455
• Appendix D Statement of Recusal Policy
• Appendix E Who Decides?
• Appendix F Recent Constitutional Issues
• Bibliography
• Index