<abstract xmlns="http://www.w3.org/1999/xhtml">

This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.
The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).
The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.
</abstract>

This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.
The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).
The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.

Magical Thinking and Appearance-based Recusal

former State Court Administrator of Pennsylvania

former Chief Legal Counsel, Administrative Office of Pennsylvania Courts

British Journal of American Legal Studies

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

{"article-title":"Magical Thinking and Appearance-based Recusal"}

This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly...

Magical Thinking and Appearance-based Recusal

Published Online: Oct 27, 2023

Page range: 67 - 146

DOI: https://doi.org/10.2478/bjals-2023-0011

Keywords
recusal, judicial disqualification, judicial ethics, appearance of impartiality, reasonable person, reasonable observer, common law

© 2024 Zygmont Pines, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Magical Thinking and Appearance-based Recusal

Published Online: Oct 27, 2023

Page range: 67 - 146

DOI: https://doi.org/10.2478/bjals-2023-0011

Keywordsrecusal, judicial disqualification, judicial ethics, appearance of impartiality, reasonable person, reasonable observer, common law

© 2024 Zygmont Pines, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Keywords
recusal, judicial disqualification, judicial ethics, appearance of impartiality, reasonable person, reasonable observer, common law