Southwestern Law School WP No. 1334
27 Pages Posted: 7 Mar 2013 Last revised: 3 May 2015
Date Written: April 2013
Prevailing international norms value an impartial process in judicial decision-making. Indeed, there is remarkably little difference between the judicial recusal norms found in U.S. law and those found, for example, in other common law countries. However, an issue shared by common law countries is the necessity, often downplayed in practice, that judges not only be impartial in fact, but also that they are perceived as impartial. This Article addresses two issues shared by common law nations concerning the appearance of impropriety: (1) the common practice of directing judicial recusal motions to the very judge whose impartiality is being challenged, and (2) the reluctance of some judges to recuse themselves when the lack of impartiality stems from appearances rather than actual bias. Taken together, these flaws with the current approach to recusal worldwide put the judge in the untenable position of judging his or her own cause, and also create the potential that judges will focus on their personal belief in their impartiality rather than on the appearance of impropriety, as required by the recusal standard.
Keywords: Federal courts, Judicial recusal, Judicial ethics
Suggested Citation: Suggested Citation
Bassett, Debra Lyn and Perschbacher, Rex, Perceptions of Justice: An International Perspective on Judges and Appearances (April 2013). Fordham International Law Journal, Vol. 36, No. 1, 2013; Southwestern Law School WP No. 1334; UC Davis Legal Studies Research Paper No. 338. Available at SSRN: https://ssrn.com/abstract=2229296