What the Fair Minded Observer Really Thinks About Judicial Impartiality

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