Magical Thinking and Appearance-based Recusal

There have been two competing philosophical perspectives relevant to the legal idea(l) of reasonableness. One approach advocates a standard that is normative, one generally influenced by ethical values. The normative approach, which is predominant in the legal world, recognizes that the standard cannot be proven empirically or logically. This approach looks to reasonableness as reflecting a community's ideals and values, one that expresses the collective conscience of a community.

See Tobia, supra note 67, at 302; Miller & Perry, supra note 568 at 370–71 and 380 n.285; and DiMatteo, supra note 11, at 307 (noting the religious and philosophical foundations). Prudence, for example, is a qualitative attribute of the reasonable person in torts. See Prosser & Keeton, supra note 68, § 32, at ¶¶ 174–175.

The competing view (labeled as positivist, empirical, or statistical) posits that the reasonable person is an ordinary “vanilla-type” creature, an all-purpose being reflecting the average citizen (“the average Joe”) and embodying an aggregation of beliefs and behaviors of the individuals in a community.

See Gardner, supra note 80, at 18 and 27.

Straddling the fence between these two camps is a legal philosophy that portrays the reasonable person as a hybrid in theory and practice.

See generally Tobia, supra note 67; and Jaeger, supra note 65.

Such philosophical musings, sometimes abstruse, may be intellectually interesting. But they provide questionable practical guidance to the judicial decision-maker who must resolve disputes with clarity, practicality, and efficiency

A word of caution is appropriate. Philosophical concerns can implicate significant practical consequences. Consider Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness, 100 B. U. L. Rev. 951, 963–65 (2020) (regarding the “split second syndrome” and the issue of adopting an average approach in the constitutional assessment of an officer's split-second decision to shoot a suspect).

Objectivity in the law can be an overly romanticized aspirational concept. There are frequent references in caselaw that judicial reasoning is “objective.” Such a viewpoint is both idealistic and practical because it comforts the litigants and the public about the importance of judicial impartiality and the fair administration of justice, namely, that a jurist's personal preferences, values, or biases will/should not dictate the reasoning process. The reasonable person or reasonable observer becomes a valuable filtering mechanism for providing the appearance of objectivity and impartiality. At the same time, it provides an important reminder (to a jurist and the public) that personal values or views should not control the adjudicatory process.

But the concept of judicial objectivity requires a more nuanced assessment, as jurists and scholars acknowledge. Alan Calman has observed that what is missing from discussions of reasonableness is a basic understanding of human nature.

See Calman, supra note 68, at 3.

Regardless of the context in which the reasonable person/observer standard is applied—torts, contracts, constitutional endorsement, or judicial disqualification—there remains an underlying concern about the ever-present danger of a judge's beliefs, values, predispositions, or bias imperceptibly compromising the apparent objectivity of decision-making, especially in circumstances when discretion is legally unguided.

See DiMatteo, supra note 11, at 314–17 (psychological aspects of the reasonable person and the judicial mind), noting that the reasonable person is the “inevitable prisoner of the subjective judicial mind,” id. at 344; and Hill, supra note 105, at 1449 (danger of judicial predisposition and alignment); and Warren A. Seavy, Negligence – Subjective or Objective, 41 Harv.L. Rev. 1, 27 (1927); and see Pines, supra note 127, at 116–20 (identifying various forms of bias).

The relationship between law and morality is a topic that has fascinated philosophical and legal scholars. H. L. A. Hart's classic exposition of the separation of law and morals explained that historically there has been a recognition that “the development of legal systems had been powerfully influenced by moral opinion, and, conversely, that moral standards had been profoundly influenced by law, so that the content of many legal rules mirrored moral rules or principles,” an historical causal connection that is not easy to trace.

See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 598 (1958). Regarding the practical decision-making aspects of the law-morality dilemma, see J.C. Oleson, The Antigone Dilemma: When the Paths of Law and Morality Diverge,” 29 Cardozo L. Rev. 669 (2007).

The limited scope of this article precludes any extended philosophical discussion regarding the role of morality in the development of the law.

Consider Commonwealth v. Howard, 257 A.3d 1217, 1233–39 (Pa. 2021) (Wecht, J., concurring) wherein Justice Wecht critiques the “common sense of the community” standard and the application of common law-based notions of morality in a prosecution (endangering the welfare of a child), questioning what evidence is necessary in identifying the relevant community and proving the charge.

The issue of law's relation to morality raises the related and important factor of context. In his analysis of reasonableness and objectivity, professor Neil MacCormick stressed that the task of interpreting “reasonableness” is contextual, involving the identification of values, interests and the like that are relevant to the particular focus of attention, which depends on the type of situation, the relationship at issue, and the governing principles and rationales for the branch of law at issue. Reasonableness is necessarily a context-driven concept.

See MacCormick, supra note 66, at 1577, 1593–94.

Inasmuch as impartiality is a foundational value in our justice system, a disqualification challenge represents a weighty and an emotionally precarious challenge to the judicial system and the judge. Given the gravity of the matter, strict guardrails have been established to prevent frivolous claims or tactical manipulation of the judicial process. These procedures impose a burden (on the petitioner) and a benefit (on the jurist).

A petitioner who claims actual or apparent bias must present a claim with factual specificity. Vague, conclusory, unverified, or unsupported allegations or feelings are insufficient to satisfy the petitioner's evidentiary hurdle. Thus, general allegations of animus, as well as speculation or innuendo, cannot satisfy the evidentiary burden. Courts will reject recusal challenges when they are based on “mere” conjecture or suspicion.

See, e.g., Com. ex rel. Armor v. Armor, 398 A.2d 173, 174 (Pa. Super. 1978) (bias allegation, without supporting evidence, will inevitably result in an unsuccessful recusal challenge); Tracey v. Tracey, 903 A. 2d 679 (Conn. 2006) (vague, unverified assertions of opinion, conjecture or speculation insufficient). When rejecting mere conjecture or suspicion, courts are fond of using another metaphorical expression, “Caesar's wife.” Such a comment can be a simplistic response in avoiding a more penetrating analysis of a bias claim, which requires proof of a reasonable basis. There is a distinction between a claim that is based on “mere” suspicion as opposed to “reasonable” suspicion. See, e.g., United States v. Nixon, 267 F. Supp. 3d 140 (D.D.C. 2017); In re United States, 666 F. 2d 690 (1st Cir. 1981); and In re Allied Signal, 891 F.2d 967 (1st Cir. 1989). The Caesar metaphor, however, can act as a thoughtful (albeit sexist) reminder that the judicial system must be kept, like Caesar's wife, above reproach.

The petitioner faces another burden. A challenge to a jurist's actual or apparent impartiality must meet the obstacle of a presumption that strongly benefits the challenged jurist.

See Flamm, supra note 21, at § 4.5 regarding the application of the presumption in disqualification cases; and Raymond J. McKoski, supra note 165, at 423 (referring to the “almost impenetrable presumption of impartiality”).

Aside from the issue of providing a challenged jurist with a procedural advantage in a recusal challenge, the presumption generates other concerns. Judge Easterbrook noted:

Yet, drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard under sec. 455(a) into a demand for proof of actual impropriety. So although the court tries to make an external reference to the reasonable person, it is essential to hold in mind that these outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.

Matter of Mason, 916 F.2d 384, 386 (7th Cir. 1990). See also Pines, supra note 134, at 106–09 (criticizing the unreflective application of the presumption in view of the inadequacy of procedural safeguards and inherent unfairness of recusal processes; recalibration and procedural reform advocated). See also Marbes, supra note 152 (recommending a contextual recalibration of the presumption).

This jurisprudential concern leads to another important issue. What is the actual effect of the presumption? Does it tilt the scales of justice in the jurist's favor? For example, is it applied at the initial stages of litigation or throughout the litigation, thus providing a tactical advantage for the judge and a procedural burden on the petitioner? There is no clarity in recusal caselaw. One suspects that the presumption operates to benefit the jurist throughout the disqualification litigation. Presumptions can be conclusive or rebuttable. Presumptions are created for reasons of convenience, fairness, or policy.

See Fleming James, Jr., Burdens of Proof, 47 U. Va. L. Rev. 51, 65 (1961). See also C. Okpaluba & L. Juma, The Problems of Proving Actual or Apparent Bias: An Analysis of Contemporary Developments in South Africa, 14 Potchefstroomse Electronic L.J. 13, 23–24 (2011) (identifying the rationales for the presumption).

To understand what and how the reasonable observer perceives, it is necessary to ascertain who the reasonable observer represents. A transcribed administrative conference discussion between two justices of the Michigan Supreme Court, regarding Michigan's then recently amended rules of disqualification,

See MCR 2.003. The amendment incorporated the new appearance standard.

The justices’ perplexity is understandable because, in assessing the appearance of impropriety, a jurist is placed in an awkward, perhaps cognitively untenable, position. As one jurist observed: “An objective standard creates problems in implementation. Judges must imagine how a reasonable, well-informed observer of the judicial system would react. Yet the judge does not stand outside the system.”

Mason, 916 F.2d at 386.

From the theoretical perspective at the legal baseline, however, courts have recognized that the reasonable observer should not be the judge—the reasonable observer must be a lay person.

See Taylor-Boren v. Issac, 143 N. H. 261, 268, 723 A.2d 577 (1998); United States v. Voccola, 99 F.3d 37, 42–43 (1st Cir. 1996).

In the negligence field where the reasonable person came to maturity, Dean Prosser remarked that the level of knowledge, including minimal requirements, ascribed to the reasonable person is one of the most difficult issues to assess.

See Prosser & Keeton, supra note 11 at §32, ¶¶ 182–85.

Difficulties arise when the “knowledge” and “fully informed” aspects of the reasonable observer are examined more closely. The definitional quandary brings to mind the differing views between Justices O’Connor and Stevens in Capital Square about how much knowledge (of the history and context of the community) should be imputed to the reasonable observer.

See Capital Square, 515 U.S. 753, and generally §1(C) supra.

Other issues about the knowledge and point of view of the “fully informed and objective” observer arise. Often, such facts may be hidden from public view and are not readily ascertainable—for example, the association of a judge's law clerk with one of the parties or counsel, the potential economic interest or civic activities of a judge's spouse, an ex parte conversation, a financial gift or contribution, or a troubling past social media post. Such “private” facts may indeed be relevant to an appearance-based challenge. Although caselaw states that the recusal inquiry is tied to knowledge of facts in the public domain,

See In re Fifty-One Gambling Devices, 298 S.W.3d 768 (Tex. 2009); and Smulls v. State, 71 S.W. 3d 138 (Mo. 2002) (a reasonable person is one who knows all that has been said in the presence of a judge; recusal assessed with respect to multiple allegations of newspaper articles and trial judge's interaction with another judge; dissent found a sufficient basis for the appearance of impropriety).

Lastly, against this tableau of analytically diverse perceptions of the reasonable observer, one returns to the fundamental issue of what the reasonable observer heuristic is (or is not) capturing. Philosophically, there has always been a tension in how the reasonable person heuristic is applied. As noted previously,

See supra § I(D)(1) regarding philosophical polarities.

Justice O’Connor's vision of the reasonable observer (in religious endorsement cases) had always been a challenging one. In Capital Square, Justice O’Connor disavowed any focus on “actualities,” preferring to base her heuristic on a “collective standard,” similar, she said, to the reasonable person in the law of torts.

Capital Square, 515 U.S. at 779.

The application of Justice O’Connor's formulation of the metaphorical reasonable person/observer in Establishment jurisprudence revealed some underlying infirmities of the heuristic. Notwithstanding the demise of Justice O’Connor's heuristic, the critical questions asked by commentators remain relevant for our purposes: Whose perception controls?

See Baude & Sachs, supra note 19, at 1091 (noting that sometimes a fundamental issue in interpretation is whether the author's or the readers’ perspective controls).

Metaphors (like the reasonable person or observer) are meant to assist us in thinking and reasoning.

Paul H. Thibadeau & Lea Boraditsky, Metaphors We Think With: The Role of Metaphor in Reasoning, 6(2) PLoSONE 2011, available at https://doi.org/10.1371/journal.pone.0016782 (published Feb. 23, 2011). Authors note that metaphors are incredibly pervasive and fundamental to everyday discourse; it is estimated that English speakers produce one unique metaphor for every 25 words they utter. Id.

As Mephisto advised in Faust: “Put your trust in words/ They’ll guide you safely past doubt and dubiety.”

See Faust, supra notes 1 and 3, lines 1–2.

The over-arching disqualification

See supra notes 156–63 and accompanying text regarding the scope of the precept.

The crux of this Article's section is that U.S. recusal jurisprudence presents a perplexing example of the lack of analytical clarity regarding the meaning of the appearance recusal heuristic and the applicable evidential threshold for disqualification. Specifically, there is a disturbing divergence in disqualification jurisprudence between the specific terminology of the ethical mandate (disqualification is required when a judge's “impartiality might reasonably be questioned”) and its application in concrete cases -- a divergence that ultimately undermines the fundamental value that justice must satisfy the appearance of justice. Remarkably, except for the occasional perceptive observation by others of the conceptual ambiguities,

See Flamm, supra note 21, at §§ 11.4 and 11.5; and Newhouse, infra note 397.

From a wide-angle perspective, U.S. caselaw seems to slip and slide from the lower modal standard (“might”) to a higher conclusory “would” – the latter, in Faustian parlance, safely guiding the decision-maker from doubt and dubiety.

See Faust, supra note 1, line 2. Similarly, rather than focusing on the appearance of impartiality, judges are prone to slip and fall into a no-actual-prejudice analysis.

U.S. caselaw reveals an analytical approach that is less solicitous to appearance-based recusal, one that is in tension with the ordinary and clear text of the standard. Often the modals “might” and “would” are blithely used interchangeably in opinions (and even in a single opinion). For example, in rejecting countervailing considerations of administrative inconvenience and expense of a re-trial in a convoluted multi-party diversity action (that required 33 days of trial), one court adopted a hard line approach toward the trial judge's failure to disqualify, stressing the importance of protecting the judiciary from any hint of the appearance of bias.

See Potashnik, 609 F.2d 1101, at 1111–12.

In addition, courts will frequently couple the outcome-determinative modal verb with qualifiers that make the advocate's burden more onerous. In the application of the relatively simple five-word recusal standard (i.e., the judge's “impartiality might reasonably be questioned”), courts exercise considerable interpretative latitude and creativity in the assessment of the risk of perceived partiality. Courts have imposed various conditions onto the “might” appearance standard, including: “significant doubt;”

See, e.g., Salemme, 164 F. Supp. 2d at 52; United States v Kelly, 888 F.2d 732, 744–45 (11th Cir. 1989); Murray, 923 F. Supp. at 1293 (reasonable or significant doubt required); Grieppe, 17-CV-3706 at *10; Herrera-Valdez, 826 F.2d at 917; State v Smith, 203 Ariz. 75, 80 n.4 (2002) (court nevertheless admits that better practice, especially in a capital case, would have been to assign a judge from another county; court denies recusal challenge but reserves future recusal review regarding sentencing); and Taylor-Boren, 143 N.H. at 268.

Lastly, there are instances when a disqualification challenge has been rejected despite an acknowledgment that there may indeed be merit to a reasonable person's questioning the jurist's impartiality.

See Salemme, 164 F. Supp.2d at 85 (emphasis supplied); and In re Commitment of Winkle, 434 S.W.3d 300 (Tex. App. 2014) (decision denying recusal fell within “the zone of reasonable disagreement;” court acknowledges that the trial judge's community might infer bias from judge's campaign signs and slogans, and facts “may raise serious questions about his fairness as a judicial officer,” id. at 312–13).

It is impossible to identify the impetus (psychological or jurisprudential) for the imposition of a higher standard in these appearance-recusal cases. Perhaps an aversion to the challenging and vague appearance-based standard; or an unconscious preference for (or comfort in) an actual prejudice standard;

See, e.g., Salemme, 164 F. Supp.2d at 52, citing Justice Kennedy's comments in Liteky, 510 U.S. at 557–558, regarding the requirement of a high threshold to satisfy the appearance standard (stating: “…a judge should be disqualified only when it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute”); and Rex R. Perschbacher, Caperton on the International Scale, 18 Legis. & Pub. Pol’y 699, 705 (2015) (noting the tendency to resist recusal based on appearances or perceptions and opining that judges appear to be more comfortable with actual, demonstrable, and obvious bias situations).

In any event, such varying adjectival adhesions, increasing the procedural and evidential burdens imposed on a petitioner, effectively transmogrify the appearance-based recusal standard, create analytical confusion, and increase the risk of erroneous and unfair decision-making. The ultimate risk is that the public's perception of justice and its trust and confidence in the judicial system are jeopardized.

Commentators, including Supreme Court justices,

See Justice Stevens’ critique of the prior endorsement test in Capital Square, 515 U.S. 753, in supra § II(B)(2).

The recognition of the interests of others, when relevant, should guide the formulation of the reasonable observer heuristic. The high court of Australia addressed the importance of considering the impressions of the public and parties in applying the reasonable observer (a/k/a fictitious bystander) heuristic:

It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that in contemporary Australia, the fictitious bystander is not necessarily of European ethnicity or other majority traits.”

See Johnson, 200 C.L.R. 488, at ¶ 41.

Similarly, in identifying and applying the objective test for apparent bias, the High Court of South Africa acknowledged: “In a multicultural, multilingual and multiracial country such as South Africa, it cannot reasonably be expected that judicial officers should share all the views and even the prejudices of those persons who appear before them.”

See SARFU2, 4 SA 147, at ¶ 43.

The preceding commentary is relevant to the symbolic and practical issue of whose voice does the judge channel when conjuring the metaphorical reasonable observer. Joanna Grace Tinus, advocating a fine-tuning of the heuristic, has remarked that “…the objective nature of the [reasonable person] standard has been undermined by relying on a standard of reasonableness that tends to reflect social norms and particular prevailing ideas of particular classes of individuals.”

See Tinus, supra note 70, at 45; Resnick, supra note 44, at 1909–10 (no judge stands outside a social context; adjudication is socially embedded); and Robertson, supra note 351, at 749, 762 (noting the unconscious framing of issues that seem to support one's social identity).

The recognition and incorporation of multiple perceptions, when appropriate and feasible, would promote greater jurisprudential sensitivity and clarity. Decision-making could be enhanced, for example, by taking a debiasing “external assessment approach.” As Richard Re notes:

Thus, a court could attempt to assess and take account of the views of other actors, even when the court itself is “internally” certain that the other actor's reasonable view is incorrect. Scholars have labeled this basic approach an external assessment of ambiguity, by which one interpreter attempts to predict or imagine how other interpreters would resolve a particular issue.

See Re, supra note 16, at 1517.

This external assessment of ambiguity approach, in which the identity of the perspective plays a key role, is believed to enhance analytical clarity and predictability. Such a mode of interpretation may be more appropriate when there is limited information and the governing perspective is that of an actor other than the deciding court,

Id. at 1522.

The external approach in interpretation is a sensible one given that, as Christopher Brett Jaeger has noted, there is a distinction between legal reasonableness and lay reasonableness. Academic or theoretical discussions of the reasonable person, whose roots are empirical, are often divorced from the reality of how lay decision-makers encounter, understand, and apply the standard; it is an issue, he says, that deserves more attention. Jaeger posits that law should, as a normative matter, track the lay conception of justice and should mirror popular intuition.”

See Jaeger, supra note 65, at 904, 934–35, 938; Zorzetto, supra note 225; and supra note 231 (empirical evidence issue).

This analytical backdrop leads to the fundamental practical question as to the identity of the voice(s) of the reasonable observer. As emphasized by the high courts of the United Kingdom, Australia, and South Africa,

See Shankar [2006] SGHC 194, at ¶¶ 65 and 69 (Singapore); Webb, 181 C.L.R. 41, at ¶ 11 (Australia); and Roberts, 4 SA 915, at ¶ 36 (Australia).

The identity of the reasonable observer is difficult, yet fundamental, to the integrity of the decision-making process. The issue of the hypothetical reasonable observer raises philosophical, jurisprudential, and pragmatic concerns. Since the reasonable person/observer question must be rooted in the realities (albeit speculative) of the lay observer, an empirical assessment would be a rational way to proceed. But how? While recognizing that the reasonable observer question is ultimately one of law,

See Hill, supra note 105, at 1440.

If information is available, and if the task is reasonably feasible and evidentially relevant, the process of enlargement should be considered. Doing so would make the reasonable observer heuristic in appearance-based judicial ethics more principled, jurisprudentially sound, and responsive to the changing realities of contemporary society's pluralism.

Anglo-American jurisprudence identifies the metaphorical reasonable observer in generalities: fair-minded, reasonable, thoughtful, aware of the relevant facts and circumstances, and informed. As the prior discussion has indicated, the “informed” attribute has generated a considerable variety of opinion about the reasonable observer's level of knowledge and information.

See discussion of cases in supra notes 207–20 and accompanying text, regarding the “informed” attribute.

Despite the different contexts (i.e., constitutional religious endorsement and rule-based judicial ethics), the basic jurisprudential challenges about the “informed” reasonable observer are similar. American commentators concluded that the heuristic (as it had been applied in the constitutional religious endorsement context) presented a highly problematic, over-idealized, unrealistic caricature regarding the imputed level of knowledge.

See Hill, supra note 105, at 1409–10; and Choper, supra note 113, at 511–14.

The Australian judicial system has stressed the importance of adopting realistic criteria for the variously described fictitious bystander. As the High Court of Australia explained: “Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public.”

See Johnson, 200 C.L.R. 488, at ¶ 52.

The High Court of England and Wales noted that the fair-minded observer cannot be ascribed all the knowledge and, indeed, assumptions of a trained judge, adding “The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny.”

See M&P Enterprises Ltd v. Norfolk Square Ltd [2018] E.W.H.C. 2665, at ¶ 27, quoting Lord Hope in Gilles v. Secretary of State for Work and Pensions [2006] 1 All E.R. 731, at ¶ 17.

How one describes—or embellishes—the attributes of the reasonable observer can be, knowingly or unwittingly, outcome-determinative. For conceptual and interpretive clarity, the reasonable observer should not be imbued with unrealistic or unnecessary qualities that threaten to convert the reasonable observer heuristic into a subjectivized judge-centric standard that muddies the focus of the standard (the objective and fair-minded lay member of the community) or undermines the standard's fundamental values (appearance of impartiality, public trust and confidence). If an “informed” attribute is deemed necessary, then it should be a simple one, connected to the relevant facts and circumstances of the case – an attribute that supports the desired qualities of being thoughtful, fair-minded, and reasonable. Simply put, how “informed” must one be to make a commonsense, reasonable assessment of a jurist's apparent impartiality?

The question is not intended to minimize the important fact that, as caselaw repeatedly emphasizes, disqualification analysis is fact-specific. The question posed herein is cautionary. Anglo-American disqualification analysis can run the risk of being overly “facty” or unnecessarily complicated, obfuscating the appearance standard and potentially converting it into an actual prejudice standard. See Shaman, supra note 54, at 628–32. Regarding the notion of “facty” see, e.g., SARFU2, 4 SA 147 (involving a fact-heavy analysis of an “unprecedented” recusal challenge that focused on all judges of the Constitutional Court).

Identifying the voice and attributes of the reasonable observer is, as the high courts of Singapore and Australia recognized, the portal to understanding and applying a critical element of the apparent bias heuristic, viz., the level of scrutiny applicable to the assessment of the reasonableness of a lay observer's perception of bias.

See Shankar, [2006] SGHC 194, at 65, citing Webb v. The Queen, 181 C.L.R. 41, at 50–51.

Commentators and jurists in the United States, on the other hand, have avoided (intentionally or unreflectively) such semantical quicksand. The approach has been devoid of meaningful analysis in the interpretation and application of the reasonable observer heuristic's “might reasonably be questioned.” The modal verb “might” is the outcome-determinative fulcrum of the standard.

See Winiharti, supra note at 246 (“would” is a modal that can be an expression of prediction; it is important to consider the context in which a modal is used). See also notes 248 and 249 supra.

Notwithstanding such constraints, the law has attempted to calibrate certitude, although, as one commentator has noted, remarkably no one has ever formulated an adequate model for applying the standards of proof.

See Kevin M. Clermont, Trial by Traditional Probability, Relative Plausibility, or Belief Function, 66 Case W. Res. L. Rev. 353, 361 n.33 (2015) (noting that psychologists have contributed almost nothing as to how humans apply standards of proof). Consider, for example, Michael D. Cicchini, Reasonable Doubt and Relativity, 76 Wash. & Lee L. Rev. 1443, 1461–62 (2019) (noting that a survey of federal judges placed reasonable doubt at “90% or higher” level, but jurors equate that highest burden with a much lower level of guilt).

Academics have not been able to resist the allure of positing alternative theories and methods to identify degrees of probability and certitude.

Consider Allen & Pardo, supra note 403 (relative plausibility); Michael S. Pardo & Ronald J. Allen, Juridical Proof and the Best Explanation (2007), available at https://ssrn.com/abstrct=1003421; Paul Tidman, Conceivability as a Test for Possibility, 31 Am. J. Phil. Q. 297 (1994) (considers the conceivability thesis regarding the relationship between conceivability and possibility, which he notes plays a crucial role in philosophical and everyday thinking); Craig S. Lerner, Reasonable Suspicion and Mere Hunches, 59 Vand. L. Rev. 407 (2019) (addressing the legal system's deference to police officers’ intuitions); and Clermont, supra note 402 (author suggests a multi-valent “degrees of belief” approach as a better way to accommodate vagueness and imprecise probability).

Clermont notes that a higher standard is a way to inform the factfinder that the burdened party must provide a stronger showing of probability; a better way to envisage the whole scale of likelihood, he says, is as a set of fuzzy categories, or coarse gradations, of likelihood.

Id. at 485.

Nevertheless, there is a gravitational pull to seek greater clarity and certainty through the assignment of more specific metrics, although judges reportedly eschew numerical or percentile interpretations.

See Re, supra note 16, at 1503. See also United States v. Fautico, 458 F. Supp. 388, 410 (E.D.N.Y. 1978) (regarding a survey of how judges associated probability to the various evidential burdens); Clermont, id. at 482 and 484 (easier for judges to apply a deliberate and probabilistic approach to the standard of proof; noting also that judges have difficulty in conveying any standard of probability to a jury and juries have difficulty in quantifying the standards of proof); Bobby Greene, Reasonable Doubt: Is It Defined by Whatever is at the Top of the Google Page?, 50 J. Marshall L. Rev. 933 (2017) (noting inability of judges to quantify the reasonable doubt standard); and Gretchen B. Chapman & Eric Johnson, Incorporating the Irrelevant: Anchors in Judgments of Belief and Values (2000) in Heuristics and Biases: the Psychology of Intuitive Thought 4–5 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds. 2002) (noting, in reference to numerical anchors that are uninformative but salient, that even judges agree that numbers are irrelevant but have an impact).

Irrespective of the challenge of identifying and assigning probabilistic numbers to the standards of proof, Clermont, for example, acknowledges that the law allows recovery upon much less than a 50% showing of probability.

See Clermont, supra note 401, at 356. Consider, e.g., Lageman v. Zepp, 266 A. 3d 572, 597–99 (Pa. 2021) (Saylor, J., dissenting) (discussing the application of res ipsa loquitur when the evidence has not established negligence, citing Norris v. Phila. Elec. Co., 5 A.2d 114, 115 (Pa. 1939)).

The discussion of heuristic calibration takes one closer to an understanding of what should be a potentially more principled and rational understanding of the disqualification standard's “might.” To do so, there is a need to expand the horizons by considering two related, but distinct, standards of proof that are applied in the criminal law context: probable cause and reasonable suspicion.

The caveat here is that application of the standards of proof and relevant tests may be comparatively helpful, but one must always be sensitive to whether the use is appropriate to the context. See § I(D)(4), supra, regarding the factor of context. Of course, one never knows if or how a metric or value judgment is being interpreted and applied.

In the context of Fourth Amendment law,

U.S. Const., amend. IV, provides: “The right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This discussion takes us to the U.S. concept of reasonable suspicion, which has its roots in Terry v Ohio.

Terry v. Ohio, 392 U.S. 1 (1968) (probable cause not required to conduct a limited protective search for weapons when police, based on specific reasonable inferences, believe that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous). Terry has since become immortalized as embodying the “reasonable suspicion” standard, although the Supreme Court's majority opinion did not use that term.

For our purposes, aside from its relatively lower-level quantitative aspect, the notion of suspicion is a fluid concept that reflects practical considerations of everyday life.

See Brennan-Marquez, supra note 416, at 1265–66, citing Brinegar v. United States, 338 U.S. 160, 175 (1949) and Maryland v. Pringle, 540 U.S. 366, 371 (2003). The author, in discussing probable cause and suspicion, notes that numerical benchmarks may be unstable and imprecise. Id. at 1266 n.51.

There is a need to re-interpret the appearance-based disqualification standard in a manner that re-balances the equation away from popular notions of probability or certainty. In doing so, we need to acknowledge the current unreflective jurisprudential approach and the importance of principled, analytical clarity. The operative disqualification standard—when a judge's impartiality might reasonably be questioned—should be interpreted more carefully and less restrictively than it has been. The critical issue is how one interprets and applies the modal “might,” as modified by “reasonably.” In consideration of the preceding discussion about levels of belief, the appropriate level of scrutiny should be reasonable suspicion—not likelihood or probability. The following reasons justify such an approach.

a. Textual and semantic fidelity, ordinary usage: The glaring aspect of the appearance standard is that “might” is not synonymous with, and does not have the same semantical meaning of, “would.” The modal “would” is utilized frequently, without explanation or elaboration, in U.S. disqualification caselaw. To be clear, there is no semantic ambiguity in the disqualification standard's specification of “might.” Whether “would” was considered by the drafters as an option, we do not know; in any event, the drafters specified “might.” Although it is impossible to discern the actual intent or state of mind regarding how one uses or interprets language, we can presume that words are used in a way that is consistent with their plain meaning—similar to how we approach and differentiate actual from apparent bias.

Consider, however, Silvia Zorzetto, The Language of Legal Rules: Some Notes About Plain Meaning in Law 10–12 (2013) (noting the relevance of context and citing instances when interpretation contradicts plain meaning), https://www.academia.edu/32601671/THE_LANGUAGE_OF_LEGAL_RULES_SOME_NOTES_ABOUT_PLAIN_MEANING_IN_LAW. See also supra notes 248 and 249.

Adrian Vermeule provides prudent advice about interpretation in decision-making -- judges should stick close to the surface level or literal meaning of clear and specific texts, resolutely refusing to adjust those texts by reference to a judge's conception of textual purpose, drafters’ understanding, public values and norms.

See Vermeule, supra note 10, at 168–81. Consider also Barrett v Commonwealth, 430 S.W.3d 337. 342 (Ky. 2015) (court adopts a plain language approach and concludes that “reason to believe,” not probable cause, is the appropriate interpretation of the standard in Payton v New York, 445 U.S. 573 (1980)).

b. Contextual adjustment of the metric: Judicial impartiality is recognized as a value of the highest order, integral to the concept of a fair trial, a fair tribunal, and the public's confidence in our system of justice.

See Pines, supra note 134, at 103–09, and cases cited therein. As the cases from the common law countries herein demonstrate, the values are international.

Adjusting the level of scrutiny in accordance with the reasonable suspicion standard provides a sufficient baseline, as well as procedural flexibility, to protect the appearance of judicial impartiality in the difficult context of uncertainty, limited information, and the public's trust and confidence in the judicial system's integrity.

c. Minimizing the costs and risks of error: The recalibrated level of scrutiny (reasonable suspicion) provides protection from the harmful consequences of erroneous decision-making in disqualification cases. A recalibrated standard, faithful to the precept's text and values, would promote greater judicial caution in recusal matters and engender greater public confidence. Allocating the burden of uncertainty (especially when decision-making is dependent on the “objective” application of a vague metaphorical construct like the “reasonable” observer) is a challenging task. Vermeule has suggested various strategies, such as the maximin criterion and satisficing. In the former, some choices dominate others in the absence of probability information because the dominant choice produces better outcomes than the outcome of the alternative, and never produces a worse outcome.

See Vermeule, supra note 10, at 175–76.

d. The “reasonable” safety valve: In disqualification matters, judges seem to exhibit scorn for a claim that exemplifies “suspicion,” often cavalierly linking it with the adjective “mere.”

See, e.g., In re United States, 666 F.2d, at 695 (properly noting the distinction); In re Allied Signal, 891 F.2d at 970 (disavowing mere suspicion of Caesar's wife as a standard); Salemme, 164 F.Supp.2d at 52 (rejecting the Caesar's wife analogy).

e. Comparative jurisprudence: The discussion about the jurisprudence from the selected common law jurisdictions reflects a studious (and, at times, admittedly complicated) attempt to eventually reach a jurisprudential consensus in the quest for a prudent, principled, and practical standard governing apparent bias. In its application of the lay observer heuristic, common law countries have demonstrated a determination to protect cherished public values and promote public confidence. Whether the reasonable observer standard is considered in relation to “suspicion” or “apprehension,” the common law jurisdictions have gravitated toward a calibration that reflects a lower level of probability (viz., possibility).

The caveat, however, is that Canada seems to have formally adopted a higher (“more likely than not”) approach. See supra notes 326–27; and Okpaluba & Maloka, supra note 20. It is worth noting that American caselaw will occasionally express the reasonable observer's perception in terms of “suspicion.” See, e.g., Hadler, 765 F. Supp. at 979 (disqualification standard protects against actual and reasonable suspicion of judicial partiality); David v. City and County of Denver, 837 F. Supp. 1094, 1096 (D. Colo. 1993) (court has duty to determine every semblance of reasonable doubt or suspicion).

f. Symbolic utility: Commentators have recognized the importance of the expressive aspect of a government's statements or actions.

See Hill, supra note 60 (discussing speech act theory and expressivism regarding social meaning and application of the reasonable observer heuristic in religious endorsement cases); and Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. Rev. 2021 (1995).