From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification

The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact and context specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for the judge to sit in a marginal case. This article explores rule-based judicial disqualification regimes in the United States, Germany and the Quebec Code of Civil Procedure to gain insights into how rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extra-judicial writings, and procedural rules for making determinations concerning judicial disqualification.