An Impartial Bench: The Grounds and Limits of Exclusion and Challenge

Abstract

This volume asks who can halt the proceedings, and on what grounds, when the impartiality of the bench is in doubt. Unfavorable conduct of proceedings and grounds for removing a judge are different things. Only by distinguishing the statutory grounds for exclusion from objective circumstances that cast doubt on impartiality can a challenge find its proper place between a means of protecting rights and a means of delay. The path to relief opens where a statutory ground for exclusion or a lawful ground for challenge is established by concrete material, and closes where the statutory restriction applies because a statement on the merits was made with knowledge of the ground for challenge, or where no concrete circumstances that would impair impartiality are established. The six sections address, in turn, the statutory relationships for exclusion, circumstances making impartiality difficult to expect, the party who proceeded with knowledge, the link between the application and prima facie proof, exceptions to the suspension of proceedings, and the separation of impartiality issues from the merits. The strongest counterargument is as follows. Requiring clear evidence of bias leaves conflicts of interest that are hard to detect from outside beyond control. The general control of institutional authority and the handling of informal contacts are not addressed in this volume.