Hastings Law Journal


Litigants in federal district courts more often are asking judges to disqualify themselves from cases on grounds of bias, prejudice, or personal interest in a lawsuit. Whether an appellate court should immediately review an interlocutory decision concerning judicial disqualification depends on the balance between two types of policies. The policies of efficiency of appellate review and respect for the trial court require the appellate court to delay review until the lower court reaches a final judgment. However, the judicial disqualification decision may affect the judgment so fundamentally that immediate review is necessary. The correct resolution of this issue is currently a matter of dispute among the courts of appeals. This Article addresses whether and under what circumstances an appellate court should immediately review a judicial disqualification decision. It suggests that the reviewability of these decisions is best analyzed in terms of the underlying reasons for the judicial disqualification motions. The Article establishes two models of judicial disqualification decisions based on the statutory grounds for disqualification. It then analyzes the suitability of mandamus, the collateral order doctrine, and certification under 28 U.S.C. § 1292(b) as devices to gain immediate review for cases that fall under each model. The Article concludes that under each model some form of immediate review is warranted, although the type of review depends on the model involved.

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