Gates, Leon, and the Compromise of Adjudicative Fairness (Part I): A Dialogue on Prejudicial Concurrences
This two-part Article is about certain qualities of fairness –those qualities that although subtle, are central to the idea and spirit of justice in adjudication. This Article is about how those qualities were subverted in the process by which the doctrine of United States v. Leon became law. Part I of the Article –A Dialogue on Prejudicial Concurrences–published herein, suggests that several members of the Leon majority (particularly its author, Justice White) were unable to impartially adjudicate the constitutional question because of pre-decisional gratuitous opinions (from the bench) on the subject. More specifically, the Dialogue explores the virtually unquestioned assumption that a judge cannot sensibly or meaningfully be criticized for being "prejudiced" or "partial" on matters of law.
Joel Jay Finer, Gates, Leon, and the Compromise of Adjudicative Fairness (Part I): A Dialogue on Prejudicial Concurrences, 33 Clev. St. L. Rev. 707 (1984-1985)