Why Judges Don't Recuse Themselves and Attorneys Don't Ask Them To: A Randomized Field Experiment Testing the Efficacy of Recusal and Disclosure
Posted: 21 Aug 2018
Date Written: July 16, 2018
This Article reviews the two most prominent procedural approaches to addressing judicial conflicts of interest — judicial recusal and in-court disclosure — and contends that they fail to account for the legal and institutional dynamics that surround the relationship between judges and attorneys. It argues that judges do not recuse themselves, that attorneys will not ask them to, and that if we understand both the legal and extra-legal incentives at play in these decisions, this should not surprise us. The shortcomings of recusal and disclosure are particularly salient in the context of judicial campaign finance, where judges often face the acute dilemma of being assigned to preside over cases in which one of the parties or attorneys has contributed to their election campaign. To support these claims, this Article presents the results of a randomized field experiment in which we identify active Wisconsin and Texas civil cases that feature donor-attorneys and randomly assign a portion of the judges presiding over these cases to receive a letter from an NGO identifying the potential conflict and requesting recusal. The empirical findings support the growing skepticism surrounding judicial recusal and raise doubts that judicial disclosure is an efficacious remedy. Building on these results, the Article suggests that academics and policy makers spend fewer resources attempting to “fix” the current recusal regime, and it explores two potential remedies — one institutional and one procedural — that account for the realities of judicial conflicts of interest and the incentives of court actors.
Keywords: recusal, procedure, field experiment, RCT, judges, judicial behavior, courts, judicial elections, campaign finance
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