Magical Thinking and Appearance-based Recusal

Johann Wolfgang Von Goethe, Faust (2014) [hereinafter Faust]

Charles Geyh, in the context of discussing procedural reforms for recusal, once remarked that “able lawyers (and judges) can conjure plausible reasons for varying outcomes in every case that is not so frivolous as to warrant sanctions.” See Charles Gardner Geyh, Why Disqualification Matters, Again, 30 Rev. of Litigation 671, 715 (2011).

Faust, supra note 1, at 69 (emphasis in original). Goethe's Faust was a work in progress for over 60 years. The work has been an inspiration to many artists and creators over the years. A variation of the tale, for example, was the subject of a parody in the animated series, The Simpsons (“The Devil and Homer Simpson”) in which Homer Simpson barters his soul for a donut. See “Treehouse of Horror” episode qt http://www.thesimpsons.com/#/recaps/season-5_episode-5 at www.The Simpsons.com.

Mephisto initially appears to Faust as a black poodle.

See Owen M. Fiss, Reason in All Its Splendor, 56 Brook. L. Rev. 789, 790 (1990). Fiss notes that Justice Brennan commented on Justice Cardozo's doubt about judges as vessels of pure reason. Id. at 796.

See Robert Nozick, The Nature of Rationality 172 (1993) (rationality is not simply applying mechanical rules).

See H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 593 (1958).

See Nozick, supra note 6, at 179.

See, e.g., Thomas Halper, Logic in Judicial Reasoning, 44 Ind. L. J. 33, 38 (1968), noting, in reference to the element of “judicial hunch” in legal reasoning, that “The judge, then, emerges as a magician, and the law turns out to be a box of tricks.” Magical realism is a literary genre that has roots in the worlds of both reality and fantasy. Generally, magical realism relies on supernatural devices, such as apparitions, to reveal and explain reality. A prime example is Gabriel Garcia Marquez, One Hundred Years of Solitude (1967). An extended examination of the literary device can be found in Magical Realism: Theory, History, Community (Lois Parkins Zamora & Wendy B. Faris, eds., 1995) [hereinafter Zamora].

See, e.g., Adrian Vermeule, Judging Under Uncertainty 157–62 (2006). Vermeule discusses the “institutionalist dilemma” regarding interpretive choices and the constraint of “bounded rationality.” See also Halper, supra note 9, at 47 (acknowledging the “corona of uncertainty” in the law).

The objective reasonable person has originally been referred to, in common law (in the context of torts and contracts), as the “reasonable man.” See Mayo Moran, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev.1233 (2010) (exploring the many facets of “common law's most enduring fiction” in private and public law); Larry A. DiMatteo, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment, 48 S. C. L. Rev. 293–94 (1997); John Gardner, The Many Faces of the Reasonable Person (2015), https://johngardnerathome.info/pdfs/reasonableperson2013.pdf ; and Prosser and Keeton on Torts, § 32–33 (5^th ed. 1984) [hereinafter Prosser & Keeton ].

See DiMatteo, id. at 305–07 (identifying the religious, philosophical, and psychological roots of the reasonable person).

See Zamora, supra note 9, at 498.

Consider, Ida Petretta, The Question of Comparisons, 68 Am. J. of Comp. L. 893, 898–99 (2020) (rhetoric has always been integral to judicial disputes and analogical legal decision-making).

On the many uses and meanings of metaphor in everyday life, see the essays in On Metaphor (Sheldon Sacks, ed. 1978).

See Richard Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1513–14 (2019).

See Nozick, supra note 6, at 93 (organisms need adaptive mechanisms to respond to local circumstances).

Others have appropriated the term “magical legalism”. See Jeffrey Miller, Magical Legalism of Marcel Ayme: Charming Rogues and the Suspension of Physical, Natural, and Positive Law, 53 Cahiers De Droit 649 (2012); and Javier Trevino-Rangel, Magical Legalism: Human Rights Practitioners and Undocumented Migrants in Mexico, 23 The Int’l J. of Human Rights 843 (2019).

William Baude & Stephen Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1117 (2017) (advocating an approach, a law of interpretation, that would identify and apply interpretive rules governing a particular text or written instrument). Cf. Re, supra note 16 at 1507 (linguistic ambiguity could be resolved by way of an interpretive canon, yielding legal clarity).

Consider, for example, Jane Mayer, Legal Scholars Are Shocked by Ginni Thomas's “Stop the Steal” Texts, The New Yorker (Mar. 25, 2022), https://www.newyorker.com/news-desk/legal-scholars-are-shocked-by-ginni-thomass-stop-the-steal-texts; Kara Voght & Tim Dickinson, SCOTUS Justices ‘”Prayed With” Her—Then Cited Her Bosses to End Roe, Rolling Stone (July 6, 2022) (quoting constitutional law and ethical experts regarding the problem of the appearance of judicial impartiality, the reasonable observer, and the lack of an objective mechanism to resolve judicial ethical concerns), https://www.rollingstone.com/politics/politics-features/roe-supreme-court-justices-1378046/; Michael J. Solender, Must Justice Clarence Thomas Recuse Himself, Wall St. J (Apr. 1, 2022) (noting that Ginni Thomas's texts create, at minimum, the appearance of impropriety for Justice Thomas), https://www.wsj.com/articles/justice-clarence-thomas-supreme-court-recuse-ginni-texts-11648828232; and infra note 168 (Supreme Court's public approval ratings). In the international common law context, see Matthew Chuks Okpaluba & Tumo Charles Maloka, The Fundamental Principles of Recusal of a Judge at Common Law: Recent Developments, 43(2) Obiter 88, 90 (2022) (noting that “[d]espite the already-existing avalanche of case law on this important subject [recusal], there is no slow-down in the frequency with which cases raising the issue of bias, apprehended bias or the requirement of judicial impartiality are canvassed in common-law courts.”); and Anne Richardson Oakes & Haydn Davies, Process, Outcomes, and the Invention of Tradition: The Growing Importance of the Appearance of Judicial Neutrality, 51 Santa Clara L. Rev. 573, 581–86 (2011) (noting the increased sensitivity to and acceptance of the appearance concept in the European Court of Human Rights). [hereinafter Oakes & Davies].

Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (3^rd ed. 2017), is a valuable treatise regarding judicial disqualification. The resource provides comprehensive exposition, with commentary, of relevant U.S. caselaw. See id. § 1.5 n. 5, ¶15 (statistically, refusals to recuse predominate).

The terms recusal and disqualification are often used interchangeably. See, e.g., In re School Asbestos Litigation, 977 F.2d 764, 769 (3d Cir. 1992); and Model Code of Judicial Conduct (Am. Bar. Ass’n 1990) Canon 2, r. 2.11, cmt. [1] [hereinafter Model Code].

Some academics have noted a distinction in terminology regarding rules vs. standards. Standards are viewed as promoting abstract ideals and are less determinative than rules. Rules are more conduct-specific and easier to enforce. See Mary C. Daly, The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perception of Lawyer Codes of Conduct, by U.S. and Foreign Lawyers, 32 Vand. J. Trans. L. 1117, 1123 (1999); Joseph R. Grodin, Are Rules Really Better than Standards, 45 Hastings L. J. 569 (1994).

See Louis J. Virelli, Disqualifying the High Court: Supreme Court Recusal and the Constitution 165–210 (2016) (discussing recusal at the state and federal court levels).

Model Code, Canon, 2, r. 2.11(A), supra note 22.

See Prosser & Keeton, supra note 11.

See text in infra § I(A) and accompanying notes.

See Petretta, supra note 14, at 909 (citing Ludwig Wittgenstein, Philosophical Investigations (1998)). See also, Aviam Soifer, Reviewing Legal Fictions, 20 Ga. L. Rev. 871, 915 (1986) stating “Words help us understand and escape the tyrannies of the past…Used eloquently, however, words may help us to seek change rather than continuity and to struggle for our aspirations rather than to accept that whatever seems to be is good enough.”

See infra §. IV(B)(1).

See Re, supra note 16, at 1513–14 (discussing “clarity thresholds” and “accuracy promoting heuristics” to avoid or minimize risks of judicial error and harmful effects).

See Stephen Breyer, American Courts Can’t Ignore the World, The Atlantic (Oct. 2018), https://www.theatlantic.com/magazine/archive/2018/10/stephen-breyer-supreme-court-world/568360/. Justice Breyer has been a forceful proponent of learning from foreign jurisdictions. Even the late Justice Scalia was known to be receptive to examining and considering comparative law, except in constitutional matters. See Melissa A. Waters, Justice Scalia on the Use of Foreign Law in Constitutional Interpretation: Unidirectional Monologue or Co-Constitutive Dialogue, 12 Tulsa J. Comp. & Int’l L. 149 (2004) (discussing an emerging “transnational judicial dialogue” and interest among Supreme Court justices in foreign law); see also Olympic Airways v Husain, 540 U.S. 644, 658 (2004) (Scalia J., dissenting) (urging courts to take foreign judicial decisions more seriously in the context of treaty interpretation).

Breyer id. See also Stephen Breyer, The Court and the World 241 (2015) (noting a well-established American legal tradition of learning from foreign sources, consisting predominantly but not entirely of common law materials). Consider also Lawrence v Texas, 539 U.S. 558, 576 (2003) (foreign legislation considered, including European Commission of Human Rights).

Petretta, supra note 14, at 914. See also Damiane Canale, Comparative Reasoning in Legal Adjudication, 28 Canadian J. of L. & Juris. 5 (2015) (while foreign law is not authoritative, it can provide content-independent reasons for adjudication).

Id. at 894–96. See also Gerald Dworkin, The Moral Right of the Author: Moral Rights and the Common Law Countries, 19 Columbia—VLA J. L. & Arts 229 (1994) (noting that the U.S. common law has a rich independent legal history, but many of its principles in contract and tort and other relevant law are not dissimilar to the principles found and applied in common law countries); and H. D. Hazeltine, The Influence of Magna Carta on American Constitutional Development, 17 Colum. L. Rev. 1 (1917).

See Sweet & Maxwell, English Common Law is the Most Widespread Legal System in the World (2008), https://sweetandmaxwell.co.uk./about-us/press-releases/061108.pdf; and Cyrus Das, Recusal of Judges: A Commonwealth Survey of the Applicable Tests, 280 in Cyrus Das, The Culture of Judicial Independence (2014) (“English law, in some form or another, is applied in about 55 countries around the world which house about one-third of the world's population”) id. at 280.

See Waters, supra note 31, at 150.

See Petretta supra note 14, at 913.

See Nozick, supra note 6, at 40, 71–74.

Id. at 67.

Id. at 68.

See Faust supra note 1 at line 3. Consistent with Mephisto's cynicism, Mephisto also says “…law is no delight. / What's jurisprudence? – a stupid rite/ That's handed down, a kind of contagion, / From generation to generation,/ From people to people,/ region to region.” Id. at 68.

See, e.g., supra note 20, regarding press coverage of recusal controversies involving the Supreme Court.

See Gerd Gigerenzer, Bounded and Rational in Contemporary Debates in Cognitive Science 117 (R. J. Stainton ed. 2006).

See Jerome Frank, Are Judges Human? 80 U. PA. L. Rev. 17 (1931); and Judith Resnick, On the Bias: Feminist Reconsiderations of the Aspirations of Judges, 61 So. Cal. L. Rev. 1877, 1905 and 1910 (1988).

See Elizabeth Thornburg, (Un)Conscious Judging, 76 Wm. & Mary L. Rev. 1567, 1608 (2019).

Id. at 1608–09.

See Gigerenzer, supra note 43, at 128.

Id. at 123.

See Jeffrey J. Rachlinski, Heuristics and Biases in the Courts: Ignorance or Adaptation? 76 Or. L. Rev. 61, 93 (2000).

Amos Tversky and Daniel Kahneman have been pioneers in the study of heuristics and biases. See, e.g., Amos Twersky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCI. 1124 (1974), https://www.science.org/doi/10.1126/science.185.4157.1124 [hereinafter Twersky & Kahneman].

See Gigerenzer, supra note 43, at 119–20.

Id. at 119–127.

See Thornburg, supra note 45, at 1612–13; Twersky & Kahneman, supra note 50, at 20–21; Gretchen B. Chapman & Eric J. Johnson, Incorporating the Irrelevant: Anchors in Judgments of Belief and Values, in Heuristics and Biases: The Psychology of Intuitive Thought 120–38 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds. 2002); Daniel Kahneman, Thinking Fast and Slow 119–28 (2011).

See Rachlinski, supra note 47 at 100–101; Matthew I. Fraidin, Decision-Making in Dependency Court: Heuristics, Cognitive Biases, and Accountability, 60 Clev. St. L. Rev. 913 (2013); Eyal Peer & Eyal Gamliel, Heuristics and Biases in Judicial Decisions, 49 Court Rev. 114 (2013); Adebola Olaborede & Lirieka Meintjes-vander Walt, Cognitive Bias Affecting Decision-Making in the Legal Process, Obiter 806 (2020) (identifying seven common cognitive biases); Jeffrey M. Shaman, The Impartial Judge: Detachment or Passion?, 45 DePaul L. Rev. 605 (1996); cf. L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic, 98 Iowa L. Rev. 293 (2012) (analyzing the reasonableness of an officer's snap judgment to shoot a suspect).

See Thornburg, supra note 51, at 1608–09, 1615–20; Kahneman, supra note 51, at 99–114.

See Rachlinski, supra note 49, at 74–81 and 90–93 (illustrating the “representative heuristic” in criticizing the “badly flawed” doctrine of res ipsa loquitor, which ignores the base rate of negligence; also analyzing the adequacy of the “prudent investor” standard, which implicates bias in assessing a trustee's liability).

See Kahneman, supra note 53, at 106, 114, and 152–53.

The concept was originally masculine, implying male attributes, but was eventually de-gendered to become a “person.” See Alan D. Miller & Rosen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 361–62 (2012). The authors also discuss the impact of the feminist backlash to the male-based nomenclature and standards. Id. at 362–66.

See DiMatteo, supra note 11.

See, e.g., Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 Mich. L. Rev. 491, 517–18 (2005) (discussing Justice O’Connor's heuristic of the reasonable observer in religious endorsement cases); and Haydn Davies & Anne Richardson Oakes, Problems of Perception in the European Court of Human Rights, 3 St. John’s J. Int’l & Comp. L. 120, 121, 131 (2013) (the observer is a fiction, a generically conceived representation) [hereinafter Davies & Oakes].

Global Positioning System. See www.gps.gov.

“Reasonableness” has been defined as: right thinking, right judgment, not absurd or ridiculous, not extreme, within bounds of reason, and rational. See Webster’s Third International Dictionary 1892 (1981).

See text accompanying supra note 28.

See Williams v Taylor, 529 U.S. 362, 410 (2000).

See Brandon Garrett, Constitutional Reasonableness, 102 Minn. L. Rev. 61, 124–25 (2017); see also Christopher Brett Jaeger, The Empirical Reasonable Person, 72 Ala. L. Rev. 887, 887 (2021) (no consensus on the definition of reasonableness). See also infra note 120 regarding Professor Hill's similar lament.

See Neil MacCormick, Reasonableness and Objectivity, 74 Notre Dame L. Rev. 1575, 1576–77 (1998).

See, e.g., Benjamin Zipursky, Reasonableness in and out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2132–33 (2015); Kevin P. Tobia, How People Judge What is Reasonable, 70 Ala. L. Rev. 293, 298 (reasonableness sits at the core of various legal standards) (2018); and David Zaring, Rule by Reasonableness, 63 Admin. L. Rev. 525, 527 (reasonableness works all over the legal system). See also Silvia Zorzetto, Reasonableness, 1 Italian L. J. 107 (2015) (explaining the porous concept of reasonableness from multiple perspectives and contexts).

See Alan Calman, The Nature of Reasonableness, 105 Cornell L. Rev. Online 81 (2020) (the concept dominates Anglo-American law).

See MacCormick, supra note 65 (providing an extended exposition of reasonableness).

See Joanna Grace Tinus, The Reasonable Person in Criminal Law 48 (2017) (Canadian thesis advocating that courts should embrace a more normative approach to reasonableness), https://qspace.library.queensu.ca/bitstream/handle/1974/15374/Tinus_Joanna_G_201702_MA.pdf.

See Prosser & Keeton, supra note 11, at § 32.

See DiMatteo, supra note 11, at 297; see also Garrett, supra note 64, at 69–84 (exploring three dimensions of constitutional reasonableness).

See Zipursky, supra note 66, at 2139 (noting also, at 2137–38 the adjectival and adverbial aspects of reasonable).

See Susan Grove Hall, The Protean Character of Jello, Icon of Food and Identity, 31 Stud. in Popular Culture 69, 76 (2008) (noting that Jell-o has become a metaphorical icon that defies categorization). Cf. Silvia Zorzetto, Rational, Reasonable and Nudged Man, 73, 80 (2019) (judicial uses of reasonableness continues to be so broad and undetermined as to be impossible to grasp) [Univ. of Milan thesis available at www.academia.edu].

See Zipursky, supra note 66, at 2133.

See Calman, supra note 68, at 16. The comment is peculiar given the article's heavily analytical neuro-scientific approach.

See Soifer, supra note 28, at 882.

See Zipursky, supra note 66, at 2132.

See Garrett, supra note 64, at 107.

See John Gardner, The Many Faces of the Reasonable Person 1, 17 (2015), https://johngardnerathome.info/pdfs/reasonableperson2013.pdf.

Consider Zaring, supra note 67, at 552–554 (viewing the term as a potentially positive force in administrative law).

See Gardner, supra note 80, at 27.

See Miller & Perry, supra note 58, at 328.

See Gardner, supra note 80, at 2–3; and Moran, supra note 11. The reasonable man/person metaphor has proven to be elastic. See, e.g., Brief of The Onion as Amicus Curiae in Support of Petitioner, Novak v. City of Parma (Petition for Writ of Certiorari, Supreme Court of the United States, No.22-293) (advocating the importance of constitutionally protected parody and the “reasonable reader's” perspective) available at www.supremecourt.gov.

Regarding the role of fictions in the law, see Peter J. Smith, New Legal Fictions, 95 Geo. L. J. 1435 (2007); and Soifer, supra note 28.

See Tobia, supra note 67, at 333, 335.

See Zorzetto, supra note 74, at 82; and Gardner, supra note 80, at 18; Tobia, supra note 67, at 333–39. Clapham is a suburb of London. As these articles indicate, the reasonable man's origins were statistical via a Belgian statistician, Adolpe Quetelet, who used the term l’homme moyen to analyze the physical characteristics of the average man. As explained by Lord Reed, the reasonable Clapham Omnibus Man exemplified a passenger belonging to an intelligent tradition of defining a legal standard by reference to a hypothetical person, stretching back to the creation by Roman jurists of the figure bonus pater familias. See Healthcare Services at Home, Ltd v Common Servs. Agency [2014] UKSC 49, ¶ 1–3, 4 All ER 210 (appeal taken from Scotland). It is not clear whether the first jurisprudential appearance of the reasonable man in England was in Vaughn v. Menlove [1837] 132 Eng. Rep. 490, 3 Bing (N.C.) 468, or R. v Jones [1703] 87 Eng. Rep. 863. See Tinus, supra note 70, at 6–10. See also DiMatteo, supra note 11, at 294–297 and 303 (reasonable man concept in contracts rooted in the need for objectivity and impartial interpretation, similar to the objective theory of contracts).

See Prosser & Keeton, supra note 11, at § 32, ¶ 174.

See Lucy Jewel, Does the Reasonable Man Have Obsessive Compulsive Disorder, 54 Wake Forest L. Rev. 1049, 1051, 1060, and 1073–85 (1989). The author views the reasonable man as an anthropomorphic metaphor for legal reasoning and reason itself, one who has contributed to a disregard for the rights, experiences, and dreams of people who do not fit his paradigm.

See DiMatteo, supra note 11, at 315–16.

See Soifer, supra note 28, at 882.

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

See Miller & Perry, supra note 58 at 361–64; Tinus, supra note 70, at 15–22; Mayo Moran, Rethinking the Reasonable Person: Custom, Equality and the Objective Standard, (1999) (treatment of various groups under the objective standard viewed as raising profound concerns about equality and ultimately about the rule of law; author focuses primarily on feminist efforts to reform the reasonableness standard) (unpublished thesis, Univ. of Toronto, available at www.tspace.library.utoronto.ca); and Mayo Moran, The Reasonable Person: A Conceptual Biography in Comparative Perspectives, 14 Lewis & Clark L. Rev. 1233, 1234 (2010) (noting that, as law's most enduring, complex, ubiquitous, and controversial legal fiction, the reasonable person may be a vehicle that allows discretion to import prejudice into the law). The feminist critique bears similarities to the majoritarian critique of the reasonable observer heuristic. See § IV(A) infra.

See Hyde v. United States, 225 U.S. 347, 391 (1912) (Holmes, J., dissenting); and Moran, supra note 93, at 205–10 (noting, from a feminist perspective, that the reasonable person has been so generalized to the point of ambiguity).

See Christopher Jackson, Reasonable Persons, Reasonable Circumstances, 50 San Diego L. Rev. 651, 651–52 (2013) (echoing Mayo Moran).

Attributes, however, may be heightened for one who possesses particular skills or a higher level of knowledge. See Prosser & Keeton, supra note 11 at §32, ¶¶ 182–93; cf. DiMatteo, supra note 11 at 318–19 (reasonable person personification in contracts in comparison to the torts context).

See DiMatteo, id. at 317 and 343; Zorzetto, supra note 74, at 80.

Cf. and consider the relevance of the feminist controversy, supra note 56. See also Tinus, supra note 68, at 15–22 (discussing the feminist critique); Prosser & Keeton, supra note 11, at § 32 n.5. Moran, supra note 11, notes the challenging relationship of the amorphous reasonable person metaphor with egalitarian values and the paradoxical danger of prejudicial discretion.

See Soifer, supra note 28, at 885.

Lemon v. Kurtzman, 403 U.S. 604, 612–13 (1971).

U.S. Const. amend. I, which provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”. Application of the endorsement test under the Establishment Clause often involved challenges to religious displays on government property. The endorsement aspect of the Establishment Clause question is whether such a government-related display represents a constitutionally impermissible government endorsement of religion. Justice Ginsburg noted that the endorsement inquiry has been described as the “reasonable observer standard.” American Legion v. American Humanist Assn., American Legion v. American Humanist Assn., 139 S. Ct. 2067, 2106 n. 4 (2019) (Ginsburg, J., dissenting).

Capital Square Rev. & Adv. Bd. v. Pinette, 515 U.S. 753, 779 (1995).

Id. at 779–80 (internal citations omitted, italics in original) (O’Connor, J., concurring in part and concurring in the judgment). See also Justice O’Connor's earlier views regarding her endorsement interpretive approach in Lynch v Donnelly, 465 U.S. 668 (1984) (O’Connor, J., concurring) and Wallace v. Jaffree, 472 U.S. 38 (1985) (O’Connor, J., concurring in the judgment).

Capital Square, 515 U.S. at 780–781.

See Lynch, 465 U.S. at 694 (stating that the analytical question of the reasonable observer's observations is largely a question to be answered based on judicial interpretation of social facts). See also Jessie Hill, Anatomy of the Reasonable Observer, 79 Brook. L. Rev.1407, 1440 (2014).

See Simon Atrill, Who Is the Fair-Minded and Informed Observer? Bias after Magill, 62 Cambridge L.J.279, 283 (2003). Professor Hill states that the interpretive methodology is not an empirical or statistical one. Id. at 1440. See also William P. Marshall, We Know It When We See It: The Supreme Court and Establishment, 59 Cal. L. Rev. 495 (1986). Regarding the issue of empirical evidence, see infra notes 231 and 370.

See Capital Square, 515 U.S. at 769.

Id. at 800 n. 5.

Id. Stevens notes therein that a person who views an exotic cow as a symbol of the government's approval of the Hindu religion could not survive O’Connor's test, which is predicated on the view that there is always someone who will feel excluded by a government's particular action.

See Hill, supra note 60, at 503–07; and Hill, supra note 105, at 1409–10. Hill's criticism is that Justice O’Connor's heuristic is over-idealized, fails to capture reality, is unconstrained and unguided, risking the danger that the over-idealized observer becomes a stand-in for the judge who may embody a majoritarian point of view.

See Hill, supra note 105, at 1449–52.

See Hill, supra note 60, at 517–22.

See Jessie Choper, The Endorsement Test: Its Status and Desirability, 18 J. L. & Pol. 499, 512, 516–20 (2002). See also Benjamin I. Sachs, Whose Reasonableness Counts, 107 Yale L.J. 1523 (1998) (critically analyzing the approaches of Justices O’Connor and Souter); and Mark Strassen, The Endorsement Test is Alive and Well: A Cause for Celebration and Sorrow, 39 Pepp. L. Rev. 1273 (2013).

See Richard H. Fallon, Jr., Tiers for the Establishment Clause, 166 U. Pa. L. Rev. 60, 119, 223 (2017), citing Paul Horwitz, The Agnostic Age 223 (2011). See also B. Jessie Hill, supra note 60, at 492 (describing the unpredictability of Establishment Clause challenges).

See Fallon, id. at 60–62.

See Hill, supra note 105, at 1408–10.

See Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022). The case involved a high school football coach's post-game prayers on the football field. The Court viewed the prayers as private and non-coercive. Justice Sotomayor stated that the Court had overruled Lemon “entirely and in all respects.” Id. at 2449 (Sotomayor, J., dissenting opinion in which Breyer and Kagan, JJ., joined). J. Sotomayor's dissent questioned whether the new history-and-tradition test provided any guidance to school administrators and wondered how such a test would be implemented. Id. at 27–30. It is interesting to note that Professor Hill opined in 2014, supra note 105, at 1408–09, that the reasonable observer test might survive the death of endorsement if social meaning remained a relevant factor, for example, when it is necessary to determine if government speech is coercive or proselytizing.

Kennedy, 142 S. Ct. at 2427.

See American Legion, 139 S. Ct. 2067, a case involving the erection of a 30-foot World War I memorial (a Christian cross) in 1925. The plurality opinion generated seven opinions and noted that the Court had many times expressly declined to apply or ignored application of Lemon. See id. at 2080. The plurality opinion by Justice Alito cited lower federal court cases demonstrating that the Lemon test resulted in chaotic jurisprudence, produced unpredictable results, and was difficult to apply. 139 S. Ct. at 2080–81. Growing judicial frustration or confusion about the governing jurisprudential standard is exemplified by Kennedy, 142 S. Ct. 2407, in which 11 judges of the 11^th Circuit had dissented from that court's denial of a petition for reconsideration, 4 F.4^th 910, 911, noting Lemon's “ahistorical, atextual” approach in Establishment Clause cases. Id. at 911, and n.3. In both American Legion and Kennedy, the Court found the government's actions did not violate the Establishment Clause.

See Hill, supra note 105, at 1407. See also Davies & Oakes, supra note 60, at 131 (acknowledging the inherent difficulty in describing the fictional public observer).

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.

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

See Youngjae Lee, The Criminal Jury, Moral Judgments, and Political Representation, 2018 U. Ill. L. Rev. 1255, 1269 (2018); and Tobia, supra note 67, at 300–301 (reasoning that there is no such thing as an “average accident” or “average racism.”) There is a related philosophical paradox. If the reasonable person represents the community average, does the concept acknowledge the possibility that the reasonable person can also act unreasonably? See Matt King, Against Personifying the Reasonable Person? 11 Crim. L. & Philos. 725, 728–29 (2017). Dean Prosser points out that, in the world of tort law, the reasonable person is not to be identified as an ordinary individual who might do unreasonable things. See Prosser & Keeton, supra note 11, § 32 at 175.

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

See supra § 1(C).

See Jackson, supra note 95, at 658–63 (advocating that the relevant circumstances of a litigant's situation should be incorporated into the reasonable person test). See Tobia, supra note 67, at 311–12 and 340–41 (observing that recent experimental research demonstrates that what is considered “normal” judgment and reasonableness is a hybrid blend of the statistical and prescriptive). Cf. Miller & Perry, supra note 56 (concluding that reasonableness, considered in normative terms, is the only logical way to view the reasonable person).

See text accompanying infra notes 365–70 regarding various considerations relevant to the external assessment approach; consider also supra § I(D)(1) regarding the philosophical polarity between the average and the ideal.

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).

See Calman, supra note 68, at 3.

See Prosser & Keeton, supra note 11, at § 32, ¶ 175 n.14.

See Jaeger, supra note 65, at 901–03, 947.

See Garrett, supra note 64, at 107, 110, 125; Mayo Moran, supra note 93, at 1233, 1234 (suggesting that the reasonable person may inject prejudice into the law).

In re Bernard, 31 F. 3d 842, 844 (9th Cir. 1994).

Id. See also Resnick, supra note 44, at 1905, 1910 (noting the “inevitability of perspective” in that there is no one objective stance or neutrality given that judges are human who are embedded in society; there is a series of perspectives). The troublesome dilemma of objectivity in recusal self-assessments can be alleviated somewhat by asking a neutral jurist to assess and decide the recusal challenge lodged against another jurist. Such a process is eminently preferable to the self-serving and subjective self-assessment of impartiality. See Zygmont A. Pines, Mirror, Mirror, On the Wall—Biased Impartiality, Appearances, and the Need for Recusal Reform, 125 Dick. L. Rev. 69 (2020) (discussing the problem of “biased impartiality” while proposing fair and procedurally specific procedures that require an independent assessment of a recusal challenge by another jurist).

In re United States, 441 F.3d 44, 67 (1^st Cir. 2006). In an international context, the South African Constitutional Court observed that “absolute neutrality is a chimera.” See South African Commercial Workers Union v Irvin & Johnson Ltd. [2000] 3 S.A. 705 (CC) at ¶ 13.

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).

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).

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.

See DiMatteo, supra note 11, at 305–07.

See Lee, supra note. 123, at 1267–69 (difficult to escape a normative assessment of the reasonable person; author asks whether jurors should reflect their individual values or values of the community); and Zorzetto, supra note 74, at 80 (noting “Whether the Anglo-American Clapham Omnibus [the reasonable person] represents a certain moral ideal that belongs to common sense, rather than a composite of society at large, is in fact unclear.”)

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

See Capital Square, 515 U.S. at 782.

See Tobia, supra note 67, at 350–351; but see Jackson, supra note 95, at 653, 705 (disagreeing with the assumption that the reasonable person heuristic varies and depends on the field of law and the normative considerations that animate a given field of law).

See Kennedy, 142 S. Ct. 2407, supra note 117.

See supra note 87.

See Bryan Oberle, Comparing the Archetypal Characters and Symbols of Justice in World Mythology, 1 Ilios 60, 62–63 (Apr. 2011). See also Dennis Curtis & Judith Resnick, Images of Justice, 96 Yale L.J. 1727 (1987); and Judith Resnick & Dennis Curtis, Representing Justice (2011).

Model Code, supra note 22. The terminology section of the Code defines “impartial,” “impartiality,” and “impartially” as the “…absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

See Offutt v. United States, 348 U.S. 11, 13 (1954); Aetna Life Ins. Co. v. Lavoie, 474 U.S. 813, 825 (1986); and In re Murchison, 349 U.S. 133, 136 (1955).

Liljeberg, 486 U.S. 847 (1988).

Id. at 864–65. See also Liteky v. United States, 510 U.S. 540, 553 n.2 (1994) (noting “… the judge does not have to be subjectively biased or prejudiced, so long as he appears to be so.”).

See Commonwealth v. Shipp, Case No. FE-2020-8 (Va. Cir. Ct., Dec. 20, 2020). The local court system had previously adopted a “Plan of Action” to address racism within the justice system, including public displays and symbols. See also Hans Bader, You Can’t Make This Stuff Up, Fairfax Courts Edition (Dec.29, 2020) (criticizing the court's action), https://www.baconsrebellion.com/wp/you-cant-make-this-stuff-up-fairfax-courts-edition/.

See Pines, supra note 134, at 81–89 (discussing the history and development of the appearance precept). For further background information, see Melinda Marbes, Reforming Recusal Rules: Reassessing the Presumption of Judicial Impartiality in Light of the Realities of Judging and Changing the Substance of Disqualification Standards to Eliminate Cognitive Errors, 7 St. Mary’s J. Legal Malp. & Ethics 238, 257–72 (2017).

See R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256, 259, discussed in Raymond J. McKoski, The Overarching Legal Fiction: “Justice Must Satisfy the Appearance of Justice,” 4 Savannah L. Rev. 51, 51–52 nn. 1,2,3, and 7 (2017). The case involved the ethical dilemma of a court clerk who had an association with the law firm in the civil suit. The magistrates in the case declared that they had not, in fact, consulted with the clerk, giving rise to Lord Hewart's memorable phrase. See also Anne Richardson Oakes & Haydn Davies, Justice Must Be Seen To Be Done: A Contextual Appraisal, 37 Adelaide l. Rev. 461 (2016) (discussing the genesis and modern application of Lord Hewart's appearance concept).

Although Judge Landis was successful in rescuing and restoring the reputation of American baseball, he was eventually censured by the American Bar Association for having received a monetary commission while also serving as a federal judge. Landis left the federal bench and served for many years as baseball commissioner until his death. See Pines, supra note 134, at 75–77 regarding the Judge Landis controversy.

See text accompanying supra notes 30–36 regarding the importance of an international legal dialogue.

See, for example, Dr. Bonham's Case, 77 Eng. Rep. 638 (K.B. 1610) (Coke, L.C.J.).

Model Code, Canon 1, r. 1.2 cmt. [1], supra note 22, which states, “Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety…” Cmt. [3], id., states that “Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary…”.

See David v. City & County of Denver, 837 F. Supp. 1094, 1095 (U.S.D.C. Colo. 1993); Frank, supra note 44, at 34–35 (1931); and Raymond McKoski, Living with Judicial Elections, 39 U. Ark. Little Rock L. Rev. 491, 516 (2017) (noting that partiality destroys the foundation of the judicial process and can have enormous destructive impact on the public's trust and confidence in the judicial system); and Pines, supra note 134, at 113–16.

See Geyh, supra note 2, at 667–68; and Marbes, supra note 152, at 257–58 (citing the 530 A.D. Codex of Justinian).

See 28 U.S.C. §. 47, 144, and 455(a) (2018). Section 144, which provides for the automatic disqualification of a jurist by an affidavit process, has been viewed as a failed experiment. See Geyh, supra note 2 at 685. Section 455(a) incorporates the ABA's appearance standard. When section 455 was amended, it ended the so-called “duty to sit,” which was often used by jurists to support the refusal to recuse. Today, the duty to sit is subordinate to the ethical precept of recusal. See Marbes, supra note 152, at 86 nn. 66, 93; and Pines, supra note 134, at 86 n66.

Regarding the theoretical and practical differences between a “rule” and “standard,” see supra note 23. The ABA reporter's notes, see infra note 155, at 43, 45, and 47, refer to the provisions as enforceable standards of conduct. The “appearance” mandate or precept is considered herein as a standard rather than a rule, although such nomenclature is largely irrelevant to this article's analyses.

The Code identifies categorical (per se) conditions that require automatic disqualification: personal bias or prejudice; judge's (or other designated persons’) relationship or financial interest regarding a party, lawyer, or witness in the proceeding; economic interest (of the judge or other designated persons) in the subject matter: campaign contributions; public (unofficial) statements of the judge (or as a judicial candidate) in the nature of an actual or apparent commitment relevant to the proceeding; and judge's professional or personal involvement with respect to the matter in controversy. See Model Code, r. 2.1(b), supra note 22. See also Leslie Abramson, Appearance of Impropriety: Deciding When a Judge's Impartiality Might Reasonably Be Questioned, 14 Geo. J. L. Ethics 55, 76–102 (2000) (providing examples of potential appearance of impropriety scenarios, including: judicial remarks, prior involvement in a matter, presiding in a case of a former client or client's opponent, professional relationships, claims filed by or against a judge, a judge's personal connection to the proceeding, family relationships, social or business relationships, and campaign contributions).

See E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 60 (1973). See also United States v. Pepper & Potter, Inc. 677 F. Supp. 123, 125 (E.D.N.Y. 1988); and United States v. Herrera-Valdez, 826 F.2d 912, 918 (7^th Cir. 2016) (section 455(a) is generally understood to encompass the per se disqualification categories but also encompasses a broader range of situations where appearance is compromised). The current version of the appearance standard can now be found as a mandatory black-letter rule in rule 2.11 of the Model Code, supra note 21.

See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 888 (2009) (“Almost every State… has adopted the ABA's objective [appearance of impropriety] standard.”).

See Raymond J. McKoski, Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard, 56 Ariz. L. Rev. 411 (2014) (critique by a former state jurist); but cf. M. Margaret McKeown, Don’t Shoot the Canons: Maintaining the Appearance of Propriety Standard, 7 J. App. Prac. & Process 45 (2005) (a strong defense and explanation of the appearance standard by a federal judge).

See Caperton v. A.T. Massey Coal Co., 223 W.Va. 624, 694 (2008).

Caperton, 556 U.S. 868.

See Melinda Marbes, Reshaping Recusal Procedures: Eliminating Decisionmaker Bias and Promoting Public Confidence, 49 Val. U. L. Rev. 807, 824 (2015) (constitutionally based recusal is of lesser practical importance); and Caperton, 556 U.S. at 887–888 (due process demarks only the outer boundaries of judicial disqualification; states are free to employ more rigorous standards). In Caperton, supra note 164, the Court applied a probability of actual bias standard. The application of mandatory ethical standards to the Supreme Court has provoked much controversy, debate, and uncertainty. See, e.g., Marbes, supra note 152, at 288 n.228; and Virelli, supra note 24, at 16 (“…federal recusal law has adopted a Bractonian view of recusal as a bulwark against suspicious judging, rather than the common law approach of deference to judicial integrity and professional judgment. But the Supreme Court has not embraced this view of recusal with regard to its own members. The justices have a long history of involvement in controversial situations implicating recusal-related issues.”). In response to significant media coverage regarding alleged ethical lapses concerning Justices Thomas and Alito, as well as the Court's prolonged and unexplained failure to adopt a binding code of conduct for the Court, the Senate Judiciary Committee voted (along party lines) for a stautory code of conduct that would govern the ethical conduct of the Court's justices. See Carle Hulse, Senate Panel Approves Supreme Court Ethics Bill With Dim Prospects N.Y. Times (July 20, 2023) https://www.nytimes.com/2023/07/20/us/politics/senate-supreme-court-ethics-rules.html; see also supra note 20; and Devin Dwyer, Supreme Court pivots to abortion, guns, and death penalty as public approval slides, ABC News (Oct. 3, 2021) (noting 40% approval rating in Sept. 2021, down precipitously from a ten-year high of 58% in 2020), https://abcnews.go.com/Politics/supreme-court-pivots-abortion-guns-death-penalty-public/story?id=80156687; and Donald Ayer, The Supreme Court has gone off the rails, N. Y. Times, Oct. 4, 2021, https://www.nytimes.com/2021/10/04/opinion/supreme-court-conservatives.html.

Justice Markman, for example, noted the confusion regarding the distinct actual bias and appearance standards. See People v. Aceval, 782 N.W. 2d 204, 205–206, 486 Mich. 955, (2010) (Markman, J., concurring). Justice Markman asserted that the appearance of impropriety standard was vague and formless. See also infra notes 205 and 206.

See Thode, supra note 163.

See Hall v. Small Business Adm’n, 695 F.2d 175, 176 (5^th Cir. 1983).

Cf. Hill, supra note 105, at 1410. Hill's reasonable observer heuristic provides that the judge does not put herself in the hypothetical reasonable person's shoes. The judge considers as much information as possible to reconstruct intent or purpose, namely, the social meaning of the government's message. Hill's reasonable observer is interpreted as a “reader of social meaning.” The distinction is a subtle one.

See Thode, supra note 163, at 60.

This perspective contrasts with the reasonable man test, for example, in negligence cases, where the focus is on the reasonableness of the actor's conduct.

See, e.g., In re Bernard, 31 F.3d 842; In re School Asbestos Litigation, 977 F. 2d 764, 782 (3d Cir. 1992); Hall, supra note 163, at 180. See also Pines, supra note 134, at 120–24 (stressing the public, not personal, aspect of the standard).

See Flamm, supra note 21, at § 1.5, ¶ 16 (inconsistencies suggest the absence of a sound theoretical base and raise troubling questions for a litigant).

See Julia Hughes & Dean Phillips Bryden, Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification, 36 Dalhouise L.J. 171, 173 (2013) (a Canadian perspective).

Flamm, supra note 21, a treatise that provides a panoramic topical exposition of U.S. recusal caselaw.

See Emile Durkheim, The Division of Labor in Society 41–43 and 397 (1947).

See Emile Durkheim, On Morality and Society (Robert H. Bellak ed. 1973), quoting Durkheim on concepts: “Concepts…are always common to a plurality of men. They are constituted by means of words, and neither the vocabulary nor the grammar of language is the work or product of one particular person. They are the result of a collective elaboration, and they express the anonymous collectivity that employs them.” Id. at 15.

See text accompanying supra notes 174 and 175 (ethical appearance standard is not personal and is not meant to connote actual bias).

See Allison Orr Larsen, Judging Under Fire and the Retreat to Facts, 61 Wm. & Mary L. Rev. 1083, 1089–92, and 1105–06 (2020).

See Hughes & Bryden, supra note 177, at 179.

Consider, e.g., United States v. Salemme, 164 F. Supp. 2d 49, 84–85 (D. Ct. Mass. 1998) (lengthy recitation of facts in support of judge's decision not to recuse even though the opinion indicates that the government informed the judge that it believed a reasonable person would, in the circumstances, question the judge's impartiality; judge admits that it may be debatable that a reasonable person would question his impartiality); People v. Grieppe, 17-CV—3706 (CBA0(JO) (E.D.N.Y. Jan. 8, 2018) (extensive recitation of facts regarding conflicting accounts of a settlement conference).

See, e.g., Elewski v. City of Scranton, 123 F.3d 51 (2d Cir. 1997), discussed in Sachs, supra note 113.

See Thornburg, supra note 45.

Consider Peer & Gamliel, supra note 54, at 115–16 (discussing decisional biases).

See infra §§ II(B)(3) and IV(B)(1).

See Flamm, supra note 21, at §§ 11.4 and 11.5.

See infra § IV(B).

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.

Murray v. Internal Revenue Serv., 923 F. Supp. 1289, 1293 (D. Idaho 1996). The evidential burden is similar in religious endorsement caselaw. See Elewski v. City of Syracuse, 123 F. 3d 51 (2d Cir. 1997) (regarding the display of a creche, the court notes that Establishment cases required factual specificity in relation to the particular context).

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”).

See Marbes, supra note 152, at 259, 266–72 (noting a divergence in opinion regarding the strength of the presumption, with formalists favoring a strong one, and realists favoring a weaker one). See also Pines, supra note 134, at 106–09 (critical assessment of the presumption, particularly in the context of “objective” self-assessments of impartiality).

See In re Estate of Hayes, 185 Wash. App. 567, 342 P.3d 1161, 1182 (Wash. App. 2015).

See State v. Kofoed, 817 N.W.2d 225 (Neb. 2012).

See Nixon, 267 F. Supp. 3d at 147.

See, e.g., Commonwealth v. White, 589 Pa. 642, 677 (2006) (Cappy, J., dissenting). See Flamm, supra note 21, at § 13.4 (strong deference to the judge's view).

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).

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).

See Charles M. Yablon, A Theory of Presumptions, 2 Law, Probability and Risk 227, 229 n.7 (2003).

See James, supra note 200, at 67.

Id. at 68 and 70 (noting also that once a presumption comes into play, the tendency is to send the matter to the jury and invite it to weigh it in some vague manner).

See Marbes, supra note 152, at 298–302; and Hill, supra note 105, at 1449–52.

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

See Pellegrino v. Ampco Systems Parking, 485 Mich. 1134, 1155 (2010). The exchange was contained in a prior formal statement by Justice Young (“Response to Justice Kelly and Justice Hathaway”), notwithstanding the fact that Justice Young stated that he was not participating in the underlying case. Justice Young's position was that the amendment to the MCR 2.003, id., was unconstitutional.

Mason, 916 F.2d at 386.

Bernard, 31 F.3d at 844, quoting SCA Servs., Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977).

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).

See Roberts v. Ace Hardware, Inc. 515 F. Supp. 29, 31 (N.D. Oh. 1981). See also Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1984) (“It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind and the basis for such feeling.”). Cf. Matter of Demjanuk, 584 F. Supp. 1321, 1329 (N.D. Oh. 1984) (disagreeing with the approach in Roberts, id, and urging that a strict construction approach to recusal is essential to prevent abuse and to assure the orderly functioning of the judicial system); and Eastside Baptist Church v. Vicinanza, 269 Ga. App. 239, 241, 603 S.E. 2d 681 (Ga. App. 2004) (reasonable perception is not based upon the perception of either the interested parties or their lawyer-advocates seeking to judge-shop and obtain a trial advantage); and Davies & Oakes, infra note 351 (suggesting a more nuanced broader perspective to include the subjects of the judicial process).

See infra section III regarding the “double reasonableness” heuristic in the common law countries identified herein.

See Choper, supra note 113, at 510–11 (criticizing the subjectivity and lack of analytical clarity in Justice O’Connor's then-prevailing endorsement test and highlighting the lack of definitional clarity of the reasonable observer heuristic that results in ad hoc, inconsistent, fact-laden rulings).

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

See, e.g., Mathis v. Huff & Puff Trucking, Inc. 787 F.2d 1297, 1310 (10th Cir. 2015) (reasonable person as a well-informed, thoughtful, objective observer, rather than hypersensitive, cynical, and suspicious). Caselaw reveals gradations of the “informed” attribute: Mason, 916 F.2d at 386 (informed and thoughtful); Atkins v United States, 2018 U.S. Dist. LEXIS 63728 (Ill. D. Ct. 2018) (well-informed); and In re United States, 441 F.3d 44, 57 (1st Cir. 2006) (fully informed). See also Flamm, supra note 21, §§ 15.1 to 15.3 and 18.1–18.6 and cases cited therein.

See, e.g., Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1111 (5^th Cir. 1980); Tyler v. Purkett, 413 F.2d 696, 704 (8th Cir. 2005).

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

See Mathis, 787 F.3d at 1310, citing United States v. DeTemple, 162 F.3d 279, 287 (3^rd Cir. 1998); and Herrera-Valdez, 826 F.2d at 918–919.

Hayes, 185 Wash. App. at 607 (reasonable person is assumed to know and understand all the relevant facts).

See In re Sherwin-Williams, 607 F. 3d 474, 478 (7^th Cir. 2010); Klayman v. Judicial Watch, 278 F. Supp.3d 252, 255 (D.D.C. 2017); Nixon, 267 F. Supp. 3d at 147–148.

See In re Drexel Burnham Lambert, 861 F.2d 1307, 1313 (2d Cir. 1989) (stating “We disagree with our dissenting colleague's statement that recusal based on an appearance of impropriety under sec. 455(a) requires us to judge the situation from the viewpoint of the reasonable person and not from a purely legalistic perspective. Like all legal issues, judges determine appearance of impropriety—not by considering a straw poll of the only partly informed man-on-the-street would show – but by examining the record facts and the law, and then decides whether a reasonable person knowing and understanding all the relevant facts would recuse the judge…”) It is not clear whether this case's legal context (a writ of mandamus) heightened the reasonable person standard. Cf. In re School Asbestos, 977 F.2d 764 (writ of mandamus context without any apparent heightened standard). The ethical challenge in Drexel-Burnham focused on the potential financial interest of the judge's spouse; the benefit of the doubt was accorded to the challenged jurist. The dissent gave a detailed recitation of the facts and concluded that, coupled with the heightened public awareness, the financial interest of the spouse was not remote.

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).

See Hall, 695 F.2d 175 (law clerk's participation in a conference); State v. Bard, 181 A.3d 187 (Me. 2018) (judge's ex parte communications); see also Liljeberg, 486 U.S. 847 (judge's lack of actual knowledge regarding a conflict).

Consider, e.g., Leland Stanford Junior University v. Superior Court, 173 Cal. App. 3d 403 (1985) (judge's character and reputation for impartiality are among facts that the average person on the street would consider). Such a “fact” may be used to fortify the presumption of impartiality and integrity. Consider also Nixon, 267 F. Supp. 3d at 148 n.7 (judge need not accept facts from petitioner and can contradict them with facts drawn from his own personal knowledge).

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

See Miller & Perry, supra note 58 (advocating a normative approach); Jaeger, supra note 65, at 934–938 (stating that lay people view the reasonable person in partially empirical terms); Zorzetto, supra note 74, at 144–45 (stating that legal norms are normative-centered, not empirical); Tobia, supra note 67 (recommending that “reasonable” be viewed as a hybrid concept).

Capital Square, 515 U.S. at 779.

Id. at 780.

Prosser & Keeton, supra note 11, at § 32, ¶ 175.

Capital Square, 515 U.S. 753. In a school prayer case, Justice O’Connor saddled the objective observer with an acquaintance of “the text, the legislative history, and implementation of the statute.” See Jaffree, 472 U.S. at 76.

Capital Square, 515 U.S. at 779–80. As noted, see supra notes 117–18 and accompanying text, the Supreme Court in Kennedy, 142 S.Ct. 2407, recently abandoned the reasonable observer approach in favor of a history-and-tradition test, an approach that is potentially less subjective and more factually oriented, as well as perhaps more philosophically compatible with the Court's conservative majority.

See Hill, supra note 105, at 1440 (“the reasonable observer's judgments are not statistical, empirical or otherwise derived from what a majority of people might do…”). The reasonable person fundamentally presents a question of law. Id. Consider, Howard, 257 A. 3d 1217, 1233–39 (Pa. 2021) (Wecht, J., concurring) (deploring the amorphous moralizing “common sense of the community” standard in the context of a conviction of endangering the welfare of a child, and pragmatically asking what evidence is required to demonstrate a community's norms or even how to define the relevant community). See also Davies & Oakes, supra note 60, at 121–23, 142–43 (noting the difficult issue regarding empirical evidence to assess the intuitive perceptions of the public regarding the legitimacy of the judicial process). Consider also Susan J. Becker, Public Opinion Polls and Surveys as Evidence: Suggestions for Resolving Confusing and Conflicting Standards Governing Weight and Admissibility, 70 Or. L. Rev. 463 (1991) (noting that courts have been increasingly receptive to the use of survey evidence and have sought guidance on issues regarding public policy and community standards; litigants have proferred survey results when the public's belief or perception is at issue, id. at 472–473, citing Zippo Manufacturing Co. v. Rogers Imports, Inc. 216 F. Supp. 670, 683 (S.D.N.Y. 1963)); Jeffrey Bellen and Andrew Guthrie Ferguson, Trial by Google: Judicial Notice in the Information Age, 108 Nw. U. L. Rev. 1137 (2014) (addressing the rapidly emerging judicial phenomenon of courts using judicial notice rules to bring Internet data into the courtroom; authors propose a framework and process); and Flamm, supra note 21, § 18.4 (polls and surveys generally disfavored in judicial disqualification cases).

Consider Thornburg, supra note 45, at 1616 (judges tend to favor intuitive rather than deliberative faculties); and Cass R. Sunstein, Some Effects of Moral Indignation in Law, 33 Vt. L. Rev. 405, 410 (2009) (discussing theories of cognition, author observes that sometimes intuition replaces effort and analytical reasoning and may be influenced by automatic biases); and Atrill, supra note 103, at 283 (from a common law perspective, author criticizes the judicial application of the hypothetical observer perspective as “impressionistic” with respect to the imputation of knowledge and the failure to consider competing policy interests).

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).

See Jaeger, supra note 65, at 900 (asking the fundamental question regarding the identification of the empirical reasonable person).

In the context of religious endorsement cases, see Choper, supra note 113, at 533–35; and Hill, supra note 60, at 517–22 (regarding the identification of consensus and the dangers of generalizing).

See text accompanying supra notes 108 and 109. See also infra notes 351 and 352, which identify commentaries that recommend a more nuanced and flexible heuristic. Regarding the issue of a majoritarian perspective, vis-à-vis the reasonable observer heuristic, one is reminded of the Supreme Court's (plurality) opinion acknowledging the need to protect “discrete and insular minorities.” See United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938); and David Strauss, Is Carolene Products Obsolete?, 2010 U. Ill. L. Rev. 1251 (2010).

See Paula Abrams, The Reasonable Believer: Faith, Formalism, and Endorsement of Religion, 14 Lewis & Clark L. Rev. 1537, 1538–39, 1547 (2010). Interestingly, the Court's recent history-and-tradition approach, see supra note 117, may make constitutional analysis in Establishment cases more abstract or impersonal. The unanswered question is whether contemporary observations and sensibilities will play any theoretical or evidential significance in the implementation of the new test. If so, how? Will the new history-and-tradition paradigm in Establishment cases minimize or disregard the reasonable beliefs, interests, and sensitivities of reasonable observers in a multi-cultural society? Will such views even be considered?

See Choper, supra note 113, at 519–20 (different constitutional issues may raise distinct doctrinal problems).

Id. at 523 n. 120. See also Zorzetto, supra note 67 (analyzing the importance of context).

See supra § I(D)(4), regarding context. See also Hill, supra note 105, at 1412 n.19 and 1418–21 (noting that the reasonable observer standard may have application outside the Establishment Clause context).

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.

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

See Lewis Carroll, Through the Looking Glass and What Alice Found There, at 213, in The Annotated Alice (2000).

Humpty Dumpty replied: “The question is which is to be master—that's all.” Id.

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

See Merrick Winiharti, The Difference Between Modal Verbs in Deontic and Epistemic Modality, 3 Humaniora 532–39 (2012) (epistemic modality expressed in degrees of strength regarding probability and possibility).

See, e.g., State v Marcotte, 392 Wis. 2d 183, 195–96, 943 N.W.2d 911, 917–18 (2020) where the court noted the linguistic distinction between “could” and “would” in terms of a judge's comments which objectively reflected a prejudgment and suggested a greater certainty of sentencing.

See, e.g., Stephen Yablo, Is Conceivability a Guide to Possibility?, 53 Philos. & Phenomenological Res.1–42 (1993) (concluding that conceivability is no proof of or guide to logical possibility; conceivability involves the appearance of possibility). Cf. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788 (2018) (a probing analysis that advocates a linguistic approach in the interpretation of the deceptively simple legal concept of “ordinary meaning”).

See infra § IV(B)(2)(a) regarding common English usage, and text accompanying note 189, supra regarding the possibility-probability conundrum; and consider Lee & Mouritsen, id. at 854–56 (demonstrating the use of “might” as a distinct qualifier).

See, e.g., Prosser's view of the reasonable man as both objective and subjective, supra note 130.

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

Id. § 11.4, at 230. Consider also Professor Fallon's advocating an “analytically sequenced tiered framework for judicial review” in Establishment Clause cases, supra notes 114–115.

Id.

See supra notes 179 and 180 regarding Durkheim's conception of the collective conscience. Consider also, Sunstein, supra note 232, at 428 (“For law, the basic lesson is that judgments made one at a time are likely to produce incoherent patterns, and hence it would be useful to systematize outcomes by seeing them as part of larger comparison sets.”).

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.

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

Id. at 1111 (emphases supplied). The trial judge had business dealings with the plaintiff's attorney and the judge's father was a senior partner in the plaintiff's law firm.

See, e.g., Hadler v. Union Bank & Trust Co., 765 F. Supp. 976 (S.D. Ind. 1991); State v. Martin, 825 A. 2d 835 (Conn. 2003). Among the many cases examined, the American opinions (state and federal) revealed a predominant and perplexing semantical sliding between “might” and “would” terminology, with decision-making often predicated on a conclusory “would.” Such decisions often reject requests for recusals.

See In re School Asbestos, 977 F.2d at 782 (noting that a “reasonable person might perceive bias to exist, and this cannot be permitted”); and Potashnick, 609 F.2d at 1111–12 (eventually stressing the “might” aspect of the standard); and Eastside Baptist Church, 269 Ga. App. at 239 and 241 (applying a “might” standard in requiring recusal and reassignment).

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.

See In re Lucci, 863 N.E.2d 626 (Oh. 2006); In re Disqualification of Lewis, 826 N.E.2d 299 (Oh. 2004).

See United States v. Holland, 519 F.3d 909, 913, 914 (9th Cir. 2008).

See White, 910 A.2d 648; Commonwealth v. Dip, 221 A.3d 201, 206–07 (Pa. Super. 2017).

See Hook v McDade, 89 F.3d 350, 354 (7th Cir. 1996) (stating that the question is whether a reasonable person would be convinced that judge was biased; recusal requires compelling evidence) (emphasis supplied).

See Nixon, 267 F.Supp.3d at 147. See also State v. Marcotte, 392 Wis.2d 183, 943 N.W.2d 911, 915–16 (burden of proof is on party asserting judicial bias to show by a preponderance of the evidence that a judge is biased or prejudiced); and United States v. DeTemple, 162 F.3d 279, 287 (4^th Cir. 1998) (“…to constitute grounds for disqualification, the probability that a judge will decide a case on a basis other than the merits must be more than trivial) (emphasis supplied). And see In re Bulger, 710 F.3d 42, 47 (1^st Cir. 2013) (recusal standard must be more demanding to prevent parties from manipulating system; in mandamus context, Souter, J. grants petition for disqualification). As to the importance of the procedural context, Bulger, id. at 45, notes that mandamus places a more exacting burden. See also supra notes 67, 220, and 239, regarding the importance of legal context.

See Voccola, 99 F.3d at 42–43; In re Fifty-one Gambling Devices, 298 S.W.3d at 775; cf. In re Hill, 152 Vt. 548, 573 n.12, 568 A.2d 361, ___ n.12 (1989) (disqualification required whenever “a doubt of impartiality would exist in the mind of a reasonable disinterested observer”).

See Dodson v. Singing River Hosp. Sys., 839 So.2d 530, 533–34 (Miss. 2003).

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).

Parker v. Connors Steel, 855 F. 2d 1510 (11th Cir. 1988).

Id. at 1527 (emphasis supplied). Regarding the challenge of recusal decision-making in the context of a culture of suspicion, see Liljeberg, 486 U.S. 847, supra n. 150; Mason, 916 F.2d 384, supra n. 199; and Oakes & Davies, infra n. 451.

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).

See Durkheim, supra notes 179–80 and accompanying text.

See Re Shankar Alan s/o Anant Kulkarni [2006} SGHC 194 (Sing.) ¶ 1 [hereinafter Shankar]

See Perschbacher, supra note 271, at 699–700 and 705; see also Abimbola A. Olowofoyeku, Bias and the Informed Observer: A Call for a Return to Gough, 68 Cambridge L.J. 388, 391 (2009); and DAS, supra note 34, at 281 (remarking on “a remarkable unity or consistency” in the common law courts regarding the tests for recusal).

See, e.g., Johnson v. Johnson (2000) 201 C.L.R. 488, at ¶¶11, 12 (public confidence in the judiciary and societal interests in the appearance of justice) (Australia); Canada (Ministry of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at §§ 67, 69, and 110 (appearance of justice and judicial independence, and impartiality) (Canada); R v. Sussex JJ ex parte McCarthy 1 K.B. 256, 259 (appearance of bias sufficient to overturn a judicial decision) (United Kingdom) [“Sussex Justices”]; Shankar [2006] SGHC 194, at ¶¶ 1, 43, 55, and 90 (appearance of justice and impartiality) (Singapore); and Findlay v. United Kingdom [1997] 24 E.H.R.R. 221 (judicial independence and objective impartiality) (European Court of Human Rights). And see Okpaluba & Maloka, supra note 20 (updated 2022 survey of recusal law in common law countries); Abimbola A. Olowofoyeku, Sub-Regional Courts and the Recusal Issue: Emergent Practice of the East African Court of Justice, 20 Afr. J. Int’l & Comp. L. 365, 366 n. 5 (2012) (citing international conventions and charters affirming the common law's appearance of justice principle; article critically examines the emerging recusal jurisprudence in the East Africa region). Other common law-based countries, beyond the scope of this article, have engaged in recusal analysis and reform. See Mudalige Chamika Gajanayaka, Judicial Recusal in New Zealand: Looking to Procedure as the Principled Way Forward (2014) (thesis Victoria University of Wellington) (a comprehensive procedurally detailed proposal for recusal reform) available at https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/4610/thesis.pdf?sequence=2.

See President of the Republic of South Africa v. South Africa Rugby Football Union 1999 4 SA 147 (CC), at ¶ 30 (S. Afr.) [hereinafter SARFU2] involving “an unprecedented application for recusal” of the entire Constitutional Court,” id. at ¶ 7.

See Olowofoyeku, supra note 274, at 391; Porter v Magill, 2002 2 A.C. 357, at ¶¶ 102–103 (referring to Strasbourg jurisprudence); Lawal v. Northern Spirit Ltd. 2003 I.R.L..R. 538, at ¶ 2 (HL); and Findlay, 24 E.H.R.R. 221. See Article 47 of the Charter of Fundamental Rights of the European Union (2012), Title VI (Justice), https://fra.europa.eu/en/eu-charter/article/47-right-effective-remedy-and-fair-trial#:~:text=Everyone%20is%20entitled%20to%20a,being%20advised%2C%20defended%20and%20, which states: “Everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal previously established by law…” The United States Supreme Court discussed at length both the European Court of Human Rights’ decisions and foreign legislation regarding intimate homosexual conduct in Lawrence v Texas, 539 U.S. 558 (2003). See also Davies & Oakes, supra n. 60, analyzing the doctrine of appearances in the European Court of Human Rights jurisprudence.

See, e.g., SARFU2, 4 SA 147, at ¶ 42 (citing Benjamin Cardozo); Johnson, 200 C.L.R. 488, at ¶ 43 (citing 28 U.S.C. § 455 and the ABA's Model Code of Judicial Conduct). See also Olowofoyeku, supra note 275, at 365 (in his examination of East African recusal jurisprudence, author begins his article with a quotation from American (Texas) caselaw about the importance of the appearance standard, citing Sun Exploration and Production Co. v. Jackson, 783 S.W.2d 202, 206 (Tex. 1989).

The common law cases cited herein exemplify this more analytical approach. Common law cases, however, can also be heavily factually detailed. See Okpaluba & Juma, supra note 200, at 261–62 notes 90, 91. Consider, e.g., Porter, 2 AC 357. A helpful list of leading recusal cases and their citations from common law countries including Australia and New Zealand, Canada, South Africa and neighboring countries, and the United Kingdom, can be found at the end of Okpaluba's article, id.

See supra § I(C).

See Perschbacher, supra note 271, at 704; and Debra Lynn Bassett & Rex R. Perschbacher, Perceptions of Justice: An International Perspective on Judges and Appearances, 36 Fordham Int’l L.J. 137, 158–59 (2013).

See Bassett & Perschbacher, id. at 187; Hughes & Bryden, supra note 177, at 181–82; and Atrill, supra note 106 at 280–83.

See Atrill, id. at 282–83.

See Okpaluba & Juma, supra note 200 (addressing the divergent approaches of courts in constructing the meaning of actual and apparent bias in South African law).

See Olowofoyeku, supra note 274, at 389, stating: “It is not right for any decision of the nation's apex court (or, indeed, any court) to be predicated, not on some point of principle (which can be unpacked), but entirely on whatever judges may imagine that some fictional characters would think. There must be another way…”

See Hughes & Bryden, supra note 177, at 178; Atrill, supra note 106, at 283; and Okpaluba & Juma, supra note 200, at 29 n. 72 and 30–31.

See Bassett & Perschbacher, supra note 281, at 158; and Perschbacher, supra note 271, at 702–03.

See Hughes & Bryden, supra note 177, at 179.

See id., at 173, 176.

See id., at 174–75.

See Okpaluba & Juma, supra note 200 and text accompanying nn. 61 and 62; and Okpaluba & Maloka, supra note 20, at 96.

See, e.g., R v S (RD), [1997] 3 S.C.R. 484 (Can.); Bernert v. ABSA Bank Ltd 2011 3 SA 92, at ¶¶ 31 and 34 (CC); Wewaykum Indian Bank v Canada [2003] 231 D.L.R.(4^th) 1, at ¶¶ 60, 67, and 73 (Can.); and SARFU2, 4 SA 147, at ¶ 45.

See BTR Industries South Africa (Pty) Ltd v. Metal and Allied Workers Union 1992 3 SA 673, 695C-E [hereinafter BTR] (S. Afr.); Wewaykum, id. at ¶ 77; Bernert, id. at ¶ 34.

See Okpaluba & Juma, supra note 200, text accompanying nn. 54–60 and cases cited therein; SARFU2, 4 SA 147, at ¶¶ 40–41.

See Wewaykum, 231 D.L.R. (4^th) 1, at ¶ 59 and 76; and R v. S., 3 S.C.R. 484, at ¶ 32. See also Okpaluba & Maloka, supra note 20, at 107–11 (surveying Canadian recusal).

Consider Peter J. Smith, New Legal Fictions 95 Geo. L.J. 1435 (2007) (noting the various classic and new legal fictions and the purposes they serve and why judges rely on them).

See Perschbacher, supra note 271, at 704 (stating that the presumption operates to dilute the appearance standard).

See Bernert, 3 SA 92, at ¶¶ 31–33.

See Johnson, 200 C.L.R. 488, at ¶ 52.

See In the Matter of an Application for Judicial Review by Trevor Purcell [2008] NICA 11, at ¶ 26 (Girvan, LJ) (N. Ir.) See also Johnson, id. at ¶ 48 (cautioning that the “metaphorical fiction should not be taken too far”).

See Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] 4 SLR (R.) 604 H.C. (Sing.) (“Tang Kin Hwa”) critically assessed in ¶¶ 45–46, 57, 61, and 74 of Shankar, [2006] SGHC 194; and Okpaluba & Maloka, supra note 20, at 96–100 (discussing the characteristics of the reasonable observer).

See Regina v. Gough [1993] A.C. 646, 670, 2 All ER 724 [hereinafter Gough] (emphasis supplied). Similar sentiments appear on the other side of the Atlantic. See, e.g., Hill, supra note 105, at 1410 and 1439 (the reasonable observer in religious endorsement cases is an idealized interpreter and a stand-in for the judge); see also In re Bernard, 31 F.3d at 644 (commenting on the “objective-subjective conundrum,” Judge Kozinski notes that the judge applies the standard both as its interpreter and its object).

See Porter v. Magill [2001] UKHL 67, [2002] 2 W.L.R. 37, at ¶¶ 103–104 [hereinafter Porter]. Porter significantly modified the prior objective test regarding the reasonable apprehension of bias, thus supplanting the other seminal case of Gough, id.

See S. v. Roberts 1999 4 SA 915 (SCA), at ¶ 36 (S. Afr.) (noting judges’ perceptions might be more subjective because of their training and experience).

Id. at ¶ 36.

See, e.g., Shankar [2006] SGHC 194, at ¶ 74–75 and Porter, [2001] UKHL 67, at ¶¶ 103–104.

See Johnson, 200 C.L.R. 488, at ¶ 52. See also nn. 351 and 352 infra.

See Johnson, id. at ¶¶ 12, 49, and 52 (recognizing the need to consider the complaint not by what adjudicators and lawyers know, but by how matters might reasonably appear to the parties and the public). Consider also Perschbacher, supra note 271, at 703, citing Webb v. The Queen (1994) 181 C.L.R. 41, wherein the author notes that Australian courts are not sufficiently receptive to the perception of the parties, stating that “It should be obvious that the parties, focused on their own cases and measuring bias from their own perspectives, are more likely to believe that bias exists, in contrast to the perspective of a so-called reasonable person seen through the eyes of the judiciary.”

See Webb, 181 C.L.R. 41, at ¶¶ 3 and 11 (noting “…in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case); and ¶ 49, id. (special knowledge should not be attributed to the reasonable bystander). The court identified, inter alia, the following attributes of the fictitious bystander: not a lawyer but not wholly uninformed regarding the most basic considerations relevant to the case; reasonable and fair-minded; knowledgeable about common place things; knowledgeable about the strong professional pressures on adjudicators, including traditions of integrity and impartiality; and neither complacent or unduly sensitive or suspicious. Id. at ¶ 53. See also Atrill, supra note 106, at 280–81 (noting that Australia often omits the “informed” attribute).

See, e.g., Wewaykum, 231 D.L.R. (4^th) 1. at ¶¶ 60, 63, and 74; R v S (RD), 3 S.C.R. 484, at 507–09 (a racially charged case in which the Canadian court noted that a reasonable observer should be informed of the traditions of integrity and impartiality that form a part of the background as well as the social reality of a particular case, including the prevalence of racism and gender bias in a particular community); Perschbacher, supra note 271, at 703 (noting that Canada employs an elaborate standard of the reasonable observer who possesses a complex and contextualized understanding of the issues of the case); and Hughes & Bryden, supra note 177 (critical of the level of knowledge and information Canadian courts impute to the reasonable observer). See also SARFU2, 4 SA 147, at §§ 45 and 47 (noting that South Africa employs the same reasonable observer standard as Canada, i.e., one who views the matter realistically and practically). See also Okpaluba & Maloka, supra note 20, at 107–11 (citing and considering Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) [2015] 2 SCR 282.

See text accompanying notes 242–44.

See Shankar, [2006] SGHC 194, at ¶ 45, quoting Tang Kin Hwa, 4 S.L.R. (R.) 604.

See Okpaluba & Juma, supra note 200, at n.72.

See Gough, [1993] AC 646 2 All ER 724, at ¶ 21.

See Okpaluba & Juma, supra note 200, at 28–29 (noting “Unfortunately, however, in reading recent judgments of the Supreme Court of Appeal of South Africa, one discerns a jumbled approach…,” citing cases at n. 72, id.). See also Morne Olivier, Anyone but You, M’Lord: The Test for Recusal of a Judicial Officer, Obiter 606, 608 (2006) (with respect to the controversy and uncertainty regarding the formulation of the applicable test, author posits that the incorrect and improper use of terminology as the contributing factor). Cf. Lionel Leo & Siyuan Chen, Reasonable Suspicion or Real Likelihood: A Re Shankar Alan s/o Anant Kulkani, 2 Singapore J. Legal Studies 446 (2008) (concluding, contrary to the views expressed in Shankar, that the competing tests are essentially equivalent in application; authors favor the “reasonable suspicion of bias” terminology in terms of denoting possibility). Question of Semantics?

See Gough, [1993] AC 646, 2 All ER 724.

Id. at 670 (emphases supplied). And see Olivier, supra note 315, at 609 (stating that the “real likelihood of bias” test had its origins in English law, citing, inter alia, R (Donohue) v. County Cork Justices [1910] 2 Ir. R. 271, and R. v. Camborne Justices: Ex Parte Pearce [1954] 2 All E. R. 850 (QB). With respect to Lord Goff's clarifying comment in Gough and the dilemma of definitional elasticity, consider the Supreme Court of Africa's observation, i.e., the essential connotation of the word likelihood is that of probability. See BTR Industries, 3 SA 673, at ¶¶ 39–40.

See Webb, 181 C.L.R. 41, at ¶ 9 (emphasis supplied).

See Johnson, 200 C.L.R. 488, at ¶¶ 31 and 49.

BTR, 3 SA 673, at ¶¶ 52 and 53 (emphasis supplied).

Id. at ¶ 50 (emphasis supplied).

See Roberts, 4 SA 915, at ¶ 32. The court also added a fourth element, viz., the suspicion is one which the reasonable person referred to would, not might, have. Id. at ¶ 34. The fourth element can be confusing but sensible; it does not dimmish the degree of the belief (suspicion) required but serves to emphasize that the existence of the suspicion itself must be based on probability not possibility. Thus, the fourth element is extraneous to this article's doctrinal objective and is omitted in the text of the article to avoid any unnecessary semantic or jurisprudential confusion.

See SARFU2, 4 SA 147, at ¶ 38.

See SACCAWU v Irvin and Johnson Ltd. 2000 3 SA 705, at ¶ 14 (CC) [hereinafter SACCAWU] (S. Afr.). See also Sager v Smith 2001 3 SA 1004 (SCA) (noting the difference between the “reasonable suspicion of bias” and the “reasonable apprehension of bias” tests is one of semantics, not substance).

See Porter [2001] UKHL 67, at ¶¶ 103–04.

See Hughes & Bryden, supra note 177, at 173–76 (noting particular concern about the application of the standard in “marginal cases” and the consequential need to balance considerations).

See R v S (RD), 3 S.C.R. 484, at 487 (in applying its reasonable apprehension of bias test,” the court stated: “The jurisprudence indicates that a real likelihood of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.” See also Committee for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369, 394–395 (applying the “more likely than not” standard) (Can.). In 2003, the Supreme Court of Canada, noting the considerable weight and strong presumption of impartiality, also applied the apprehension test in terms of “more likely than not.” See also Wewaykum, 231 D.L.R. (4^th) 1, at ¶ 59, 74, and 76. The text herein uses the qualifier “seemingly” because semantical interpretation, especially with respect to a foreign jurisdiction, can be tricky. For example, in American caselaw, “probable cause” is a term that is not synonymous with the common understanding of “probably.” See, e.g., infra nn. 413–16. Likewise, one can never know how a jurist subjectively calibrates a standard or metric; but clear standards and explication of one's reasoning can provide enlightenment (and accountability).

Shankar [2006] SGHC 194.

Id. at ¶ 69.

See Tang Kin Hwa, 4 S.L.R. (R.) 604.

See Shankar [2006] SGHC 194, at ¶ 74.

Id. at ¶ 75. JC Menon viewed the Australian case of Webb, 181 C.L.R. 41, as the key to his understanding of the different tests and the comparison of perspectives (the public and the court). See Shankar, id. at ¶ 65.

Id. at ¶ 84. Regarding the element of suspicion, see supra note 150 supra and infra note 451.

Id. at ¶¶48–51. See also text accompanying infra notes 407–11, regarding the levels of scrutiny.

Id. at ¶¶76 and 81.

Id. at ¶ 90 (emphasis in the original), citing Millar v. Dickson [2002] 1 L.R.C. 457 (PC), [2002] S.L.T. 988 (Scot.).

See Peter Heath, The Philosopher’s Alice, at 69 n.7 (1974).

See In re Murchison, 349 U.S. 133, 136 (1954).

As with the “informed” attribute that has been attached to the reasonable observer, Canada seems to have adopted a more elevated metric of belief. See supra notes 326–37.

See text accompanying supra notes 281–90.

See Nozick, supra note 6, at 71, 107, and 176.

See supra § I(A).

See Gigerenzer, supra note 43, at 123. See also Halper, supra note 9, at 46 (referring to “amoeboid flexibility which allows the judge to admit or exclude particular cases with almost no consideration for overall conceptual rationality.”)

See Thornburg, supra note 45, at 1614 (noting, however, that legal rules can overcome heuristic biases, id. at 1635). See also Atrill, supra note 106, at 282–83 (noting judicial propensity for “impressionistic” decision-making). Cf. Johnson, 200 C.L.R. 488, at ¶ 46(5) where the High Court of Australia noted the “desirable development” of a trend away from viewing judges as ones with “unique perceptiveness” and now relying on “the logic of circumstances” and contemporary documents rather than mere impressions.”

Tversky & Kahneman, supra note 50, at 20–21; Kahneman, supra note 53, at 119–28; and Thornburg, supra note 45, at 1612–13; and Fairley v Andrews, 423 F. Supp. 2d 800, 820 (N.D. Ill. 2006) (judges come to the bench with backgrounds of experiences, beliefs, viewpoints, and associations).

See Sunstein, supra note 232, at 432–33 (identifying the need to produce institutional safeguards to over-ride error-prone intuitions).

See Shankar, [2006] SGHC 194, at ¶ 62, quoting R v Inner West London Coroner, ex parte Dallagio [1994] 4 All 139, at 152; Bassett & Perschbacher, supra note 281, at 159; and Shaman, supra note 54, at 629. Actual prejudice assessments invariably benefit the challenged jurist, especially when applied in connection with the presumption of judicial impartiality.

See infra §§ II(B)(3) and IV(B).

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

See Atrill, supra note 106, at 288; Tinus, supra note 70; Lu-in Wang, Negotiating the Situation: The Reasonable Person in Context, 14 Lewis & Clark L. Rev. 1285, 1310–11 (2020); and Moran, supra note 93 (feminist concerns regarding equality and the reasonable man standard).

See Hill, supra note 60, at 509–10, 517–18; Hill, supra note 105, at 1452 n.211, citing Michael C. Dorf, Same Sex Marriage, Second-Class Citizenship, and Law's Social Meaning, 97 Va. L. Rev. 1267, 1336 (2011) (favoring a multiple reasonable observer approach, noting that there is no single perspective that warrants privileging); Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era, 70 Fla. L. Rev. 739, 775 (2018) (noting that no single perspective can be attributed to the reasonable observer); and Davies & Oakes, supra note 60, at 121–23, 132–34, and infra notes 372 and 373 (given the increased public sensitivity to the fair administration of justice, authors suggest a more nuanced and perhaps empirically-based approach regarding the observer fiction, extending it to include actual subjects of the judicial process).

See Perschbacher, supra note 271, at 705 n.29, quoting Jeffrey W. Stempel, In Praise of Procedurally Centered Judicial Disqualification – and a Stronger Conception of the Appearance Standard: Better Acknowledging and Adjusting to Cognitive Bias, Spoilation, and Perceptual Realities, 30 Rev. Litig. 733, 739 (2011); and Mayo Moran, supra note 94, at 205–10 (author urges a standard more responsive to the realities of a multi-racial and multi-cultural world); Mayo Moran, supra note 93, at 1283 (emphasizing the importance of context, author suggests that “rhetorical unity” about the reasonable person may be dangerous).

See Miller & Perry, supra note 58, at 371 and 377.

See Tinus, supra note 70, at 42.

Consider, e.g., the exclusionary nature of the “reasonable man” in relation to a feminist perspective. See Moran, supra note 93; Miller & Perry, supra note 58, at 361–62; and Tinus, supra note 70, at 15–22.

See Tinus, id. at 48 (distinguishing the “reasonable person” from the “rational person,” the former being concerned with the interests of others; author endorses a reasonable person concept that is imbued with the normative of care).

See Tobia, supra note 67, at 302–05; consider also DiMatteo, supra note 11, at 305–08 (discussing the reasonable person in tort and contract law as the secularization of religious precepts and rooted in moral philosophy).

See Johnson, 200 C.L.R. 488, at ¶ 41.

See SARFU2, 4 SA 147, at ¶ 43.

See R v. S (RD), 3 S.C.R. 484, at ¶. 2.

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).

See Tobia, supra note 67, at 347–50 (recommending a hybrid approach regarding the reasonable person construct); consider also Garrett, supra note 64, at 77 (noting, in a constitutional context, that if the main goal is to protect individual rights, then the perspective of an individual would be more important than the aggregate in determining reasonableness); and Davies & Oakes, supra note 351, at 154–55 (suggesting the consideration of a litigant's perspective, which the authors note may be conceptually paradoxical in the application of a self-described “objective” reasonable observer test).

See Hill, supra note 105, at 1410–11; and Choper, supra note 113, at 518–19, 525 (noting that Justice O’Connor's prior endorsement heuristic, see note 117 supra, suffered from being nebulous, unconstrained, legislative-like, and insufficiently sensitive to the reasonable minority observer).

See Choper, id., at 519 n.107, and 525 (regarding the then-prevailing endorsement analysis, author noted that the calibration should be empirically influenced by the perceptions of the “average” member of the minority religious faith, if they are discernible). See also Justice Stevens’ views, text accompanying supra notes 108–109. As others have noted, caution must be exercised—the hyper-sensitive and those with extremist views or “distressed sensibilities” should be excluded from consideration. See Choper, id. at 521–524; and Hill, supra note 60, at 517–18 and n. 153. Unconventional views, however, should not be categorically excluded. See Miller & Perry, supra note 58, at 378. In 2022, the Supreme Court, as noted herein, has abandoned the endorsement heuristic in religious endorsement cases in favor of a history-and-tradition approach. See Kennedy, 142 S. Ct. 2407.

See Re, supra note 16, at 1517.

Id. at 1522.

See Ward Farnsworth, Ambiguity about Ambiguity—An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 290–91 (2010). It is worth noting, however, that the appearance-of-impartiality ethical mandate does not, in this author's view, implicate textual ambiguity; the words are simple and clear. It is the execution of the mandate that poses difficulties. Cf. Lee & Mouritsen, supra note 248.

Id. at 290 (italics in original).

Id. at 291. Farnsworth's examination of the external and internal modes of interpretation was based on an empirical study (a survey administered to a thousand law students). Farnsworth's study recognized a hard reality: external judgments are hard to make accurately. Id. at 259–60. Obviously, judges are ill-equipped to rely on surveys for decision-making, assuming evidential propriety. But, as Farnsworth concludes, his study found “support for the idea that in at least some circumstances, judgments of ambiguity are best made by estimating how a clear statutory text would be to an ordinary reader [similar to the reasonable observer?] of English.” Id. at 260. Consider also Davies & Oakes, supra note 60, at 157 (in addressing the issue of empirical evidence to assess the intuitive perceptions of the judicial process in relation to the doctrine of appearances in the European Court of Human Rights, the authors suggest that empirical research into the root causes of public attitudes to justice and the application of those findings in judgments should not be ignored); and infra note 448 regarding two empirical surveys on judicial disqualification.

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

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).

As the High Court of Australia noted in Johnson, 200 C.L.R. 488, at ¶ 52, the “public” includes groups of people who are sensitive to the possibility of bias; see also Shankar, id., at ¶ 74 (“reasonable number of the public [who] could harbor a reasonable suspicion of bias”); Roberts, id., at ¶ 31 (question of the reasonable person should be approached from the viewpoint of the party to the action not of that famous fictional character); and BTR, 3 SA 673, at 659C-E; and Davies & Oakes, supra note 60, at 134–35 (perception of the litigants).

See Choper, supra notes 363 and 364; notes 351 and 352 supra regarding multiple viewpoints. See also text accompanying notes 108 and 109 regarding Justice Stevens’ discussion of non-majoritarian viewpoints. Cf. Commonwealth v. Druce, 796 A.2d 321 (Pa. Super. 2002 (applying a “significant minority” of the lay community standard regarding disqualification). Pennsylvania's lay minority standard was subsequently disavowed. See PA Code of Judicial Conduct r. 1.2 cmt. [5] (2014) noting that the current “reasonable minds” standard for the appearance of impropriety “differs from the formerly applied common law test of whether ‘a significant minority of the lay community could reasonably question the court's impartiality.’”

See Hill, supra note 105, at 1440.

See Hill, supra note 60, at 517–22. Consider also supra notes 231 and 369 (regarding empirical evidence, judicial notice, surveys, polls).

See Hill, supra note 105, at 1410. The context of Hill's discussion was the former reasonable observer heuristic in religious endorsement cases.

See R v S (RD), 3 S.C.R. at 488–89 (LaForest, L’Heureux-Dube, Gonthier and McLachlin, JJ) (emphasis supplied).

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

See notes 108 and 109 supra and accompanying text regarding Capital Square, 515 U.S. 753 and Kennedy, 142 S. Ct. 2407 regarding the Court's 2022 rejection of the observer heuristic in favor of a history-and-tradition analysis.

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

See supra notes 309 and 310 and accompanying text.

See Hughes & Bryden, supra note 177, at 181–82; and Perschbacher, supra note 262, at 699, 703.

See Olowofoyeku, supra note 274, at 404.

See Hughes & Bryden, supra note 177, at 180–83.

Id.

See Atrill, supra note 106, at 280–82; Bassett & Pershcbacher, supra note 281, at 158 (stating that there is a serious risk that the judiciary is subjectivizing the objective standard, i.e., the reasonable person is effectively a reasonable judge) (emphasis in original).

See Shankar [2006] SGHC 194, at ¶ 63. Regarding the troublesome self-referential perspective of judicial recusal, see Pines, supra note 134.

See Johnson, 200 C.L.R. 488, at ¶ 52.

See Atrill, supra note 106, at 280–82.

See Johnson, 200 C.L.R. 488, at ¶ 53. This narrative regarding attributes is a paraphrase and condensation of the relevant paragraph in Johnson. The opinion further noted that excessive “sophistication and knowledge about the law and its ways,” atypical of the general community, should be avoided. Id. at ¶ 54.

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.

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).

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

See supra § III(B) and (C).

See text accompanying supra note 28.

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.

See, e.g., Webb, 181 C.L.R. 41, at ¶¶ 33–34 (noting the distinction in terminology regarding whether a reasonable person might or would have a reasonable apprehension or suspicion). See also Okpaluba & Juma, supra note 200, n. 167 (noting, in reference to McGovern v. Ku-Ring-Gai Council [2008] 251 ALR 558, 42 NSWLR 504, that the Court of Appeal for New South Wales, dealing with the apprehension of bias, found the trial judge to have improperly applied the applicable test by asking the incorrect question, namely, whether the decision-maker would, rather than might, not be impartial) (emphasis supplied). McGovern is the leading case on apprehended bias in New South Wales. See also Martin J. Newhouse, Mandating Recusal in the Absence of Bias: In re Bulger, 710 F.3d 42 (1^st Cir. 2013), 59 Boston Bar (Jan. 7, 2015), (emphasizing the standard's specification of “might” in contradistinction to the stricter standard of “would;” author suggests the words may be used interchangeably but that the standard tilts in favor of recusal, especially in sensitive cases, to protect the public's perception of judicial impartiality), https://bostonbar.org/journal/mandating-recusal-in-the-absence-of-bias-in-re-bulger-710-f-3d-42-1st-cir-2013/

See Flamm, § 11.4, supra note 21. Why the Model Code's drafters chose the modal “might” instead of “would” is not explained in Thode's notes. See supra note 163. One can surmise, however, that the drafters were careful with terminology regarding such a pivotal concept. The verbal choice makes eminent sense given the precept's underlying value, viz. protecting the appearance of justice and the public's trust and confidence in the judicial system and the critical need for the jurist to exercise caution.

Consider Fleming James & Roger P. Perry, Legal Cause, 60 Yale L.J.761, 771 (1951) (noting, in the context of the chameleon quality of “proximate cause,” the problem of establishing sufficient causal evidence where an opinion is expressed in terms of possibility rather than certainty or probability or where there is an equipoise of possibilities).

See Vermeule, supra note 10, at 169–71.

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).

See Kevin M. Clermont, Standards of Proof Revisited, 33 VT. L. Rev. 469, 481 (2009).

See Ronald J. Allen & Michael S. Pardo, Relative Plausibility, 23 The Int’l j. Ev. & Proof 1 (2019) (a critique of conventional probability theory; notes that probabilistic standards in civil cases are vague and poorly understood, citing Addington v Texas, 441 U.S. 418, 425 (1979); authors favor relative plausibility theory as the best tool to assess juridical proof, but notes that critics question whether the two theories are meaningfully different, id. at 20–29); and cf. Kevin M. Clermont & Emily Sherwin, A Comparative View of Standards of Proof, 50 Am. J. Comp. L. 243 (2002) (noting a striking divergence between common law and civilian standards of proof in civil cases in England and the United States).

See Kevin M. Clermont, supra note 402 (standards of proof); Flemming, supra note 200 (burdens of proof and persuasion).

See Shankar, [2006] SGHC 194, at ¶¶ 48–51.

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).

See Clermont, supra note 402, at 482–83 n.31.

Id. at 485.

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).

See Ronald Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 Miss. L.J. 279, 333–34 (2004). Bacigal's calibrations are within the context of a discussion about interpreting probable cause in a flexible way, citing Judge Posner's focus on zones rather than specific points in a spectrum.

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 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.

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.”

See Sherry F. Colb, Probabilities in Probable Cause and Beyond: Statistical and Concrete Harms, 73 Law & Contemp. Probs. 69, 72 (citing cases); and Lerner, supra note 406, at 460.

See Colb, id. at 72, noting also that the Supreme Court has not considered what numerical odds are sufficient to establish probable cause, id. at 75.

See Kiel Brennan-Marquez, “Plausible Cause:” Explanatory Standards in the Age of Powerful Machines, 70 Vand. L. Rev. 1249, 1265 (2019).

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.

See Lerner, supra note 406, at 460.

See R. v. Kang Brown, [2008] 1 S.C.R. 456, at ¶ 75, cited in Terry Skolnick, The Suspicious Distinction Between Reasonable Suspicion and Reasonable Grounds to Believe, 47 Ottawa L. Rev. 223, 235 (2015–16).

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.

Brennan-Marquez, id. at 1255. Author also notes that historically “probable” was more akin to “provable.” Id. at 1253–54 nn. 9 and 10.

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.

See Bryan A. Garner, Garner’s Modern American Usage 529 (3d ed. 2009). See also Theodore M. Berstein, The Careful Writer: A Modern Guide to English Usage 271 (1965) (in comparing “may” and “might,” author notes that the latter “adds a greater degree of uncertainty to the possibility”). See also supra notes 248 and 249.

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)).

See cases cited in supra section II(B)(3). Consider also R v. Lifchus, [1997] 3 S.C.R. 320, at ¶ 26 (Can.) (with respect to the reasonable doubt standard, court says that explaining “doubt” through qualitative terminology such as “serious” or “substantial” should be avoided in order not to lead a juror to set an unacceptably high standard of certainty).

See Hill, supra note 105, at 1449–52 (in the context of religious endorsement cases, author noted the benefit of adopting procedural mechanisms to strengthen the reasonable observer heuristic, stating that presumptions can serve as tie breakers in close cases; however, they can be easily manipulated).

See Murl A. Larkin, Article III: Presumptions, 30 Houston L. Rev. 241, 241 (1993–1994) (presumption disappears upon rebuttal); Pines, supra note 134, at 106–09 (critical examination of the presumption of impartiality in the context of a jurist's problematic self-assessment of impartiality, which paradoxically represents a “biased impartiality” endeavor); and Marbes, supra note 144, at 298–302 (proposing a flexible re-balancing of the presumption of impartiality, including a weaker presumption for self-disqualification decisions); see Flamm, supra note 21, at § 4.5; and Yablon, supra note 201, at 227, 229 n. 7 (noting the “bursting bubble” theory of presumptions, i.e. once the party against whom the presumption is raised meets a burden of production, the presumption “bursts” and falls out of the case; author notes major evidence treatises seem generally to endorse this view).

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.

See Yossi Nehustan, The Unreasonable Perception of Reasonableness in UK & Australian Public Law, III Indian J. Const. & Admin. L. 83, 108 (2019) (in the context of British and Australian law, author advocates that the level of scrutiny should be adjusted in relation to the interests at stake, e.g., strict scrutiny when human rights are at stake); see also Bacigal, supra note 410, at 320–21 (in calibrating probable cause, it is important to identify the appropriate level of scrutiny by considering the importance of the interests).

See James & Perry, supra note 399, at 780–81.

See Shankar [2006] SGHC 194, at ¶ 64. See also Hill, supra note 105, at 1452 n. 211 (in her analysis of the reasonable observer in endorsement cases, Hill cites Professor Dorf's suggestion that there should be heightened scrutiny when an identifiable group of people take offense at the government's message of perceived inferiority).

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

Id. at 177–79. See also Re, supra note 16, at 1513–14 (suggesting an analytical framework for a clarity threshold, rooted in uncertainty, that would reduce a particular risk of judicial error and its consequences or maximize the odds of judicial accuracy; noting also that unpredictable rulings can be disruptive, yielding institutional and societal costs, id. at 1516).

See, e.g., Potashnick, 609 F.2d, at 1112; New York City Hous. Dev. v. Hart, 796 F.2d 976, 980 (7th Cir. 1986) (doubts should be resolved in favor of recusal).The risk-averse rationale might arguably provide an underlying factor when an appellate court orders disqualification and reassignment after prior or repeated reversals. Consider U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006) and U.S. v. Torkington, 874 F.2d 1441 (11th Cir. 1989).

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).

See Webb, 181 C.L.R. 41, at ¶¶ 4, 10, and 11.

See supra §1.

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).

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).

See Nozick, supra note 6, at 26–35.

See supra notes 161–63 (regarding, rules, standards, and categorical or per se rules).

See, e.g., Choper, supra note 113, at 510–21 (regarding the religious endorsement test); and Moran, supra note 11 at 1234–37 (noting that the reasonable person concept may serve as a vehicle for importing discriminatory views into the heart of the legal standard).

See, e.g., Hill, supra note 105, at 1449–52; Atrill, supra note 106, at 282–84; Hughes & Bryden, supra note 169, at 176 and 187; Thornburg, supra note 45, at 1641–45; and Robertson, supra note 351 (favoring bright line rules and procedural safeguards).

See Daly, supra note 23; cf. Grodin, supra note 23 (considering the notion of “unreasonableness” when the decision-maker fails to provide intelligible reasons to justify a decision).

See Choper, supra note 113, at 520 (in endorsement cases, judges exercise substantial authority of a legislative-like nature).

See Brennan-Marquez, supra note 407, at 1256–57 (noting that explanatory standards vindicate goals that enable judges to navigate value-pluralism); Sunstein, supra note 439, at 2024–25 (discussing the potential of legal expressions to influence or even change social norms).

Consider, e.g., Parker, 855 F.2d 1510 (complicated labor dispute involving the close relationship of the judge and his law clerk with defense counsel; judicial admission therein that a lay observer might believe in the favorable treatment of defendants); Drexel-Burnam, 861 F.2d 1307 (in a case involving allegations of financial interest and heightened public awareness, the concurring and dissenting jurist favored a less legalistic analysis that supported recusal); Salemme, 164 F. Supp.2d 49 (extensive factual, and self-defensive, narrative in which the court acknowledges a close question regarding the appearance of impartiality); Smith, 203 Ariz. 75 (involving judge's professional relationship with son and daughter-in-law of the murder victim, assessed in the context of “significant doubt”); Lewis, 826 N.E.2d 299 (involving a judge's prior tense and acrimonious relationship with defense counsel, assessed in the context of “serious doubts” that gravitated toward an actual prejudice assessment); Smulls, 71 S.W. 3d 138 (in a capital murder prosecution that generated multiple appeals involving recusal issues, case involved racially-tinged comments as well as questionable interactions with a judicial colleague; the concurrence/dissent, at 163, noted that the case demonstrated the wisdom of teachings of prior cases in which doubts as to judicial impartiality should be resolved in favor of recusal); and Winkle, 434 S.W.3d 300 (in a civil commitment case of an alleged sexually violent predator, involving the judge's questionable campaign comments and slogan about sexual predators and homosexuals, the analysis gravitated toward actual prejudice).

See Philip Bryden & Jula Hughes, The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification, 48 Alberta L. Rev. 569 (2011). Authors conducted an empirical study of the practices and attitudes of Canadian judges regarding judicial disqualification, noting that conceptual tools addressing judicial impartiality failed in “analytically marginal” cases; the survey included common scenarios, such as professional and personal relationships, prior judicial knowledge, prior trials and proceedings. Authors concluded that jurisprudence did not offer much guidance and that judicial sensibilities played a significant role. They suggested the need for the development of an improved analytical framework, along with rules and judicial education. Consider also Dana Thorley, The Failure of Judicial Recusal and Disclosure Rules: Evidence from a Field Experiment, 117 Nw. U. L. Rev. 1277 (2023) (empirical, randomized blind field experiment regarding recusal in a limited context, viz., political contributions; study revealed trial judges’ failure to disclose financial interests or recuse in cases, many of which involved rulings in favor of the conflicted parties).

See, e.g., Michele Benedetto Neitz, Socioeconomic Bias in the Judiciary, 61 Clev. St. L. Rev. 137 (2013); Resnick, supra note 44, at 1903 (noting widespread institutional discrimination regarding sex and race); Frank M. McClellan, Judicial Impartiality and Recusal: Reflections on the Vexing Issue of Racial Bias, 78 Temple L. Rev. 351 (2005); Craig Nickerson, Gender Bias in a Florida Court: “Mr. Mom” v “The Poster Girl for Working Mothers,” 35 Cal. W. L. Rev. 185 (2001) (concluding that gender bias permeates the family court system); Shaman, supra note 54, at 626–28 (regarding judicial racial, ethnic, gender, and religious bias); David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from U.S. Federal Courts, 44 J.L. & Econ. 285 (2001); Robinson, supra note 351 (noting the growing skepticism about the judiciary and its neutrality concerning politically sensitive topics); J. J. Harman et al., Parents behaving badly: Gender Biases in the perception of parental alienating behaviors, 30 J. of Fam. Psychol. 866 (2016).

See, e.g., Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195 (2009); John F. Irwin & David L. Real, Unconscious Influences in Judicial Decision Making: The Illusion of Objectivity, 42 McGeorge L. Rev. 1 (2010); Robinson, id. at 749, 762 (noting unconscious cognitive framing of issues that support one's social identity). Consider, e.g., Belton v. State, No. 8-2022 (Md., May 31, 2023) (respected appellate jurist's use of racially-tinged literary analogy created reasonable basis to suggest implicit bias requiring reversal).

As Professor Resnick notes, however, there is an inevitable inherent tension between contextual particularity and the urge for universals. See Resnick, supra note 44, at 1910 (in the context of feminist considerations of the judicial role). See also supra note 448 regarding empirical surveys which expose a hard reality about judicial impartiality. Another cautionary observation is relevant, that is, whether the vigorous pursuit of the appearance ethic and an unimpeachable judicial system may, paradoxically, contribute to what others have called “a culture of suspicion” producing an adverse impact on the public's trust and confidence in the integrity and legitimacy of the judicial system. See Anne Richardson Oakes & Hayden Davies, Process, Outcomes and the Invention of Tradition: The Growing Importance of the Appearance of Judicial Neutrality, 51 Santa Clara L. Rev. 573, 576–77 (2011) (analyzing the concept with respect to the judicial use of technical advisors in Europe; quoting the U.S. Conference of Chief Justices, the authors note that the uneasy relationship between appearance and reality is “arguably the defining problem of the modern age,” id. at 620, n. 234). Concerns about exacerbating a culture of suspicion should be assessed in the context of a judicial system that demonstrates a commitment to vigilantly pursuing the fundamental ethic of judicial impartiality, in substance and appearance. Ethical transparency and accountability are enduring values that ultimately provide incalculable benefit for the rule of law, in both appearance and substance. See also Liteky, supra note 150.

See supra notes 351 and 352.

Consider Bryden & Hughes, supra note 448, at 600-01 (noting that context is important; sensitive or high profile cases may require a heightened level of scrutiny). One could contend that the application of a better delineated and calibrated ethical appearance precept might have supported pro-recusal determinations in the following cases, which involved high profile or sensitive contexts (such as transgender rights, ethnicity, race, religious beliefs, and politics and law enforcement):

See Jackson v. Valdez, 2019 WL 6250779 (N.D. Tex, 2019) involving a transgender plaintiff alleging violations of her constitutional rights by Texas correctional officials in connection with an invasive body search during pre-trial custody. Plaintiff sought recusal based on the trial judge's history of multiple statements and advocacy, including legislative testimony, made when he served as deputy attorney general. The trial judge summarily denied the recusal motion concluding that a well-informed, thoughtful, and objective observer would not have questioned the judge's impartiality. The appellate court affirmed, noting that prior involvement and advocacy in high profile cases, without more, involving a group of people with which the plaintiff identifies, is an insufficient basis for recusal. (One could reasonably say that, given the multiple instances of prior advocacy, the appearance-recusal issue should not have been minimized as one simply involving prior employment. See Flamm supra note 21, at § 10.6 regarding the potential impact of multiple, “sum of zeros,” allegations.) However, in another transgender case, the refusal to recuse was arguably supportable. See Soule v Conn. Ass’n of Schools, litigation which challenged Connecticut's transgender athletic policy. The trial judge admonished counsel (associated with a reputedly anti-LGBT firm) about using terminology that was needlessly provocative and disrespectful of gender identity. The case was eventually dismissed as non-justiciable and moot. See Case No. 3: 20-cv-00201 RNC (D. Conn. Apr. 25, 2021). And cf. Kristie Higgs v Farmer School and the Archbishops Council of the Church of England, [2022] EAT 101 (July 5, 2022), a case involving the dismissal of a teacher regarding statements that reflected her religious beliefs (critical of LGBT issues). The Employment Appeal Tribunal, applying the fair-minded reasonable observer test, recused Edward Lord, a trans rights activist, because of public statements he had made on Twitter, which in the Board's view presented the real possibility of unconscious bias (¶¶ 51–52), notwithstanding the jurist's protestations of his actual impartiality.

In Jitendra J.T. Shah v. Tex. Dept. of Criminal Justice, Civ. Action H-12-2126 (S.D. Tex., Sept. 16, 2013), a Hindu plaintiff sought the trial judge's recusal because of his pre-trial remarks that mentioned Hitler and racial identity. The plaintiff's litigation alleged racial and national origin discrimination. While the judge's questionable refusal to recuse seems to have been predicated on an actual prejudice rationale, the ultimate outcome (judgment for defendant) appears ultimately supportable given plaintiff's failure of proof.

Idaho v. Freeman was a very publicized case raising the politically sensitive issue of the constitutional validity of Idaho's ratification of the Equal Rights Amendment, which the Mormon Church strenuously and officially opposed. Recusal was sought because the trial judge had occupied a high leadership position as a regional representative in the Mormon Church, a position of responsibility considered akin to a cardinal in the Catholic Church. The trial judge asserted his actual impartiality and denied the recusal request. See 478 F. Supp. 33 (D. Idaho, 1979) and 507 F. Supp. 706 (D. Idaho 1981). Regarding this case and the topic of religion and recusal, see Richard B. Sapphire, Religion and Recusal, 81 Marq. L. Rev. 351 (1998); Gwenda M. Burkhardt, Idaho v. Freeman – Judicial Disqualification: The Effect of Religious Leadership on Judicial Impartiality, 15 J. Marshall L. Rev. 243 (1980) (noting that the trial judge's recusal decision undermined public confidence and was widely criticized). Consider also John Garvey & Amy Comey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1998).

Politicized matters can generate considerable public scrutiny of the judiciary's impartiality when a recusal challenge is presented. In discussing the growing skepticism of the judiciary's neutrality on politically sensitive topics, Cassandra Burke Robertson offers two cases, one from New York and the other from Ohio. In the New York litigation, involving the legality of New York City's controversial stop-and-frisk policy, the appellate court stayed the trial judge's ruling and disqualified her from the case because of the trial judge's prior statements and actions that might have led a reasonable observer to question the judge's impartiality. See Ligon v. City of New York, 736 F.3d 118, 124 (2d Cir. 2013). As Robertson notes, supra note 351, at 742, the forced disqualification was heavily criticized. And in the Ohio matter, involving a constitutional challenge to Ohio's regulations pertaining to abortion clinics, Ohio Supreme Court Justice Kennedy rejected calls from pro-choice groups for her recusal. The recusal challenge focused on the justice's speech before a right-to-life organization and a questionnaire she completed for a right-to-life organization, in which she affirmed her agreement with the positions advocated by the pro-life organization. See Robertson, id. at 742–43, referring to Capital Care Network of Toledo v. State of Ohio Dep’t of Health, 58 N.E. 3d 1207 (Ohio Ct. App. 2016). Although no formal recusal motion was filed, grievances were filed. See Robertson, id.

For helpful and extensive commentary regarding recusal principles and caselaw relevant to these broad areas, see Flamm, supra note 21, at §§ 35.1 to 37.6 (background and experience), §§ 28.1 to 30.8 (business and professional relationships), §§ 31.1 to 34.4 (social relationships), and §§ 5.1 to 5.4 (class bias).