Restoring the Appearance of Propriety to the Judiciary

Abstract

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.

Keywords: judges, ethics, professionalism, ABA, social psychology, law and psychology, cognitive psychology, plea bargaining, sentencing