What the Fair Minded Observer Really Thinks About Judicial Impartiality

Modern Law Review, Early Release, 2021

U of Melbourne Legal Studies Research Paper No. 942

31 Pages Posted: 21 Jun 2021

See all articles by Andrew Higgins

Andrew Higgins

University of Oxford, Faculty of Law

Inbar Levy

Hebrew University of Jerusalem; Melbourne Law School

Date Written: June 20, 2021

Abstract

This article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (‘FMO’) used to determine whether a judge ought to be disqualified on the grounds of possible bias. As part of the test for apparent bias, judges have to imagine whether an FMO would see a risk of bias on the part of the judge. Although the courts have never definitively stated whether the FMO is meant to represent an ideal or average member of the public, to the extent that the FMO is partly meant to reflect public perception, the obvious weakness in the test is that no one has tested public attitudes to the risk of judicial bias specifically.

Keywords: Fair Minded Observer (FMO), empirical, judicial bias

JEL Classification: K19, K39

Suggested Citation

Higgins, Andrew and Levy, Inbar and Levy, Inbar, What the Fair Minded Observer Really Thinks About Judicial Impartiality (June 20, 2021). Modern Law Review, Early Release, 2021, U of Melbourne Legal Studies Research Paper No. 942, Available at SSRN: https://ssrn.com/abstract=3870830

Andrew Higgins

University of Oxford, Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

HOME PAGE: http://https://www.law.ox.ac.uk/people/andrew-higgins

Inbar Levy (Contact Author)

Melbourne Law School ( email )

Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, Jerusalem 91905
Israel

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