Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most an ideal; “impartial enough” has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which impartiality promotes public confidence in the courts; and an ethical dimension, in which impartiality is a standard of good conduct core to a judge’s self-definition. The seeming contradictions that cut across contexts in which judicial impartiality problems arise can, for the most part, be explained with reference to the dimensions those problems inhabit and the constraints to which regulation in those dimensions are subject. Thus, what is impartial enough to assure parties a fair hearing in the procedural dimension may or may not be impartial enough to satisfy the public in the political dimension, which may or may not be impartial enough to ensure that judges are behaving honorably in the ethical dimension. Analyzing partiality problems through the lens of the dimensions they occupy not only resolves many of the imponderables that have long plagued the subject, but also reveals a distinct trend—impartiality is being transformed, from a value traditionally regulated largely by judges and the legal establishment in the procedural and ethical dimensions, to one that is increasingly the province of the political dimension, where it is regulated by the public and its elected representatives. By situating impartiality at the crossroads of judicial procedure, ethics, and politics, this Article offers a new perspective, not just on judicial impartiality, but also on the role of the American judiciary in the administration of justice and the political process.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital