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1 results

  • 31 - Examining the Foundations of the Law of Judicial Bias

  • from Part III - Applications
  • Edited by Kevin Tobia, Georgetown University, Washington DC
  • Book:
    The Cambridge Handbook of Experimental Jurisprudence
    Published online:
    17 May 2025
    Print publication:
    05 June 2025, pp 514-530

  • Summary

    As part of the legal test for bias, the courts have created a fictional fair-minded observer (the FMO) to act as a conduit for reasonable public perception. A number of scholars have raised concerns that the FMO bears no resemblance to an average member of the public or reasonably reflects general public opinion. This chapter presents our original empirical pilot study on expert versus lay attitudes to judicial bias. The study compares responses of legal insiders (lawyers and judges) and nonlegal experts with a basic understanding of the law (law students) to leading cases on judicial recusal. We use vignettes based on real cases from England, Australia, and Canada that dealt with different claims of judicial bias (covering issues of race, prejudgment, and more). The study may allow us to draw conclusions about the similarities and differences between legal experts and laypeople in relation to the perception of judicial bias, and we suggest ways the full study can address methodological limitations in the pilot that would allow us to draw those conclusions with greater confidence.