The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Comparative Judicial Ethics

Posted by judicialethicsforum on Sunday, May, 19, 2013

To compare several similarities and differences between state or federal judicial ethics and three diverse venues (namely, Canada, Japan, and North Carolina), see below:

(1) Canada: Judicial Disqualification Under the “Reasonable Apprehension of Bias” Test

The “reasonable apprehension of bias” test for judicial disqualification has been a fixture of Canadian law for many years, despite a considerable amount of litigation concerning judicial impartiality. The test itself has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, our goal in the present paper is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. We begin considering the advantages of and suggest that in order to be useful, any refinement to the test must to the greatest extent possible preserve those advantages. In the second part of the paper we consider why inconsistent application of the test in marginal cases is a concern. This is followed by a more detailed consideration of the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. The fourth part of the paper proposes a modification to the “reasonable apprehension of bias” test that is designed to address these shortcomings while preserving the key advantages of the existing test.

Jula Hughes & Philip Bryden, Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification, 36 Dalhousie L.J. (forthcoming 2013) (including references to an interesting survey of Canadian judges’ recusal preferences and practices).

(2) Japan: Judicial Disqualification and Meanings of Fairness and Due Process

This article considers how Japanese judges have articulated the meaning of fairness in judicial decisions. The provisions in Japan’s Code of Civil Procedure, which provide for disqualification of judges and for direct party challenges to judges’ involvement in cases, explicitly require judges to weigh the fairness of the justice process in the particular circumstances of the cases before them. These cases provide a unique window for understanding the meaning of fairness, or what U.S. scholars might call due process, in Japanese jurisprudence.

In fact, the meaning of fairness has earned little explanation from Japan’s judges in their formal jurisprudential voice. Research uncovered only ten published case decisions under the current Constitution and Code of Civil Procedure that address the standards here. In all but one, the results were denials of the petitions and refusals to remove the judge. Early decisions, in particular, demonstrated a narrow acknowledgement of the potential for bias and were resolved via a formalistic reasoning that paid little regard for public perceptions.

While the record of judicial disqualification and challenge cases shows a history of harsh determinations in the early post-war years in Japan, more recent decisions emerging in the context of the massive changes to Japan’s justice system since 2001 suggest that judicial system reform has had a modest, but positive impact with regards to the quality of procedural justice available to civil litigants in Japan. In particular, an April 2011 decision by the Japanese Supreme Court’s Second Petty Bench, which clearly acknowledges a requirement of due process in civil procedure, offers optimism for further improvement in years ahead.

Mark Levin, Circumstances that Would Prejudice Impartiality: The Meaning of Fairness in Japanese Jurisprudence, Hastings International & Comparative L. Rev. (forthcoming 2013).

(3) North Carolina: The Appearance of Impropriety

The ABA Model Code of Judicial Conduct and the judicial codes of conduct in nearly every jurisdiction admonish judges to avoid the appearance of impropriety. The North Carolina Code of Judicial Conduct likewise contained a similar prohibition until 2003, when the North Carolina Supreme Court removed the language and made related amendments to the Code. Although North Carolina is clearly an outlier in this regard, two questions remain: first, whether North Carolina judges are still required to consider appearances in performing their duties; and second, whether judicial codes of conduct should proscribe such a standard at all.

To answer this latter question, this Article draws upon the social psychology theories of cognitive bias and procedural justice. These two theories work together to impact how judges arrive at decisions and how litigants will perceive and respond to those decisions. Both theories militate in favor of including a robust appearance standard in a judicial code of conduct. Moreover, the changes to the North Carolina Code in 2003 simultaneously exacerbated the negative effects of cognitive bias and decreased litigants’ perceptions of procedural justice in state courts.

But reinstating the appearance of impropriety language to the North Carolina Code alone will not fully ensure judicial propriety, or even the appearance of propriety. Thus, this Article illustrates how an understanding of cognitive bias and procedural justice can inform the introduction of other reforms, using the issue of judicial involvement in plea bargaining and sentencing as an example of how these theories may be applied.

Jon P. McClanahan, Restoring the Appearance of Propriety to the Judiciary, N.C. L. Rev. (forthcoming 2013).

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