Professor Jula Hughes Faculty of Law, University of New Brunswick Professor Philip Bryden

1. Empirical and Comparative Approaches to Judicial Disqualification:The Case for Limited-Scope Statutory Frameworks A Presentation to International Legal Ethics Conference VI City University London, July 2014 Professor Jula Hughes Faculty of Law, University of New Brunswick Professor Philip Bryden Faculty of Law, University of Alberta

2. Outline • Our empirical research shows difficulties in applying the common law “reasonable apprehension of bias” test • Can comparative law research help? • Potential rule-based solutions for problems in common law jurisdictions • Cooling off periods • Extra-judicial writing • Repeat customers • Procedure

3. Our Empirical Research • Philip Bryden and Jula Hughes, “The Tip of the Iceberg, A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification” (2011), 48 Alberta Law Review 569 • Survey of 137 Canadian provincial and territorial judges (approximately 13% of national population of provincial and territorial judges) • Results: • Recusal is fairly common and mostly on judge’s own motion • Judges have limited awareness of common judicial practices in their own jurisdiction • Judges do not agree on recusal in many instances

4. American Disqualification Law • Constitutional “due process” protections address probability of actual bias, especially due to financial interest, particularly relevant re: judicial elections • Most decisions driven by federal and state statutes governing disqualification • Influence of ABA Model Code of Judicial Conduct on federal and state disqualification provisions • Most important federal disqualification law found in 28 USC§455(a) and (b)

5. Codified Recusal LawThe General Approach in the United States • Typically situated in statutes or rules governing civil procedure, but derived from codes of judicial ethics • Statutes provide for: • Disqualification where “the judge’s impartiality might reasonably be questioned” • Enumerated grounds for automatic disqualification • Waiver of general ground of disqualification but not normally of automatic disqualification • Some states provide for peremptory challenge • Federal analog to state peremptory disqualification statutes (28 USC§144) interpreted restrictively to require disqualification only where grounds alleged are “legally sufficient”

6. Codified Recusal Law: The General Approach in German Law • Situated in court enabling legislation and codes of procedure • Provides for: • Automatic disqualifications • Recusal for fear of bias • (Non-disqualifying situations) • Procedure

7. Possible Rule-based Solutions for Problems in Common Law Jurisdictions • Professional Relationships with Former Colleagues and Clients • Extra-Judicial Writings • Prior Contact with Litigant in a Judicial Capacity • Procedural Issues

8. Professional Relationships with Former Colleagues and Clients • Benefits of rules governing “cooling off” periods • Distinguishing personal relationships from normal professional relationships • Distinguishing situations involving extra-judicial knowledge of the case itself • Distinguishing situations where the judge retains a financial interest in the law firm

9. Extra-Judicial Writings • Requires balancing between appearance of impartiality and competence • Case law is well settled • German Constitutional Court rule: extra-judicial writings are not a ground for automatic disqualification (and not normally a ground for recusal) • Applies a “without more” test • Recommendation: Common law jurisdictions should consider codifying rules for non-disqualifying circumstances

10. Advantages and Criteria for Codification of Disqualification • Promotes efficient use of judicial resources • Accounts for systemic impact of recusal • Regularizes judicial practice • Removes the issue from an arena of contest between litigant and court • Promotes transparency • Assists self-represented litigants (particularly procedural codes) • Enhances system credibility and reputation