Passage Discussion

[ganbayou]

Could you give us summary of the structure of this passage?

1P Explanation.background of current approach about recusal
2P The practice is bad because we cannot know hindered bias
3P Solution: let them write out the reason they want to recuse themselves
4P If they have bias or not have bias but acieved the same result/reasoning, then it is fine

Is it like this?

[ohthatpatrick]

Yeah, that's looking really good.

P1 - Current Approach

- heavily based on appearances; a judge can be recused or may be expected to recuse herself if there would be an appearance of impropriety were she to judge a certain case

P2 - Author's negative view on Current Approach

- very vague and inconsistent
- we should focus on eliminating actual bias, not appearance of bias
- with this method, we will often recuse judges who don't need to be recused and we'll often fail to recuse judges who should be recused

P3 - Author's solution to this problem

- get rid of the process where lawyers/civilians can make a motion to force the judge to be recused
- if judge wants to recuse herself, she has to explain why.
- if the judge doesn't want to recuse herself, she has to make sure she shares her legal reasoning for how she judges the case

P4 - Author answers anticipated objections to his solution

- Potential Objection: a biased judge could "pretend" to be using certain legal reasoning for how she judges the case

- Author's response: so what? if it's valid legal reasoning, then there's no harm being done. If there's no harm being done, then there's no reason to complain.