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Process, Outcomes And The Invention Of Tradition: The Growing Importance Of The Appearance Of Judicial Neutrality., Anne Richardson Oakes

Anne Richardson Oakes

When the U.S. Supreme Court in Caperton v. Massey ruled that judicial recusal under the Due Process clause did not depend upon proof of actual bias but required reference to an objective standard, it asserted the importance of appearance as an aspect of judicial legitimacy and brought this aspect of its jurisprudence into line with that of the European Court of Human Rights. The formulations of both jurisdictions reference the same common law tradition of procedural fairness but now draw divergent conclusions concerning the implications for judges who use technical advisors. This paper explores the tension between process and outcomes …