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McKoski on Judicial Appearance of Impropriety

By Lawrence Solum

Ray McKoski (Lake County, Illinois) has posted Judicial Discipline and the Appearance of Impropriety: What the Public Sees is What the Judge Gets (Minnesota Law Review, Vol. 94, No. 6, pp. 1914-1996, 2010) on SSRN. Here is the abstract:

Judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the misuse of office, public commentary on prohibited topics, and participation in certain civic, religious, and political activities.

In addition to specific rules barring actual improprieties, it is commonly believed that a broader disciplinary standard is necessary to fully safeguard the public?s faith in the judiciary. As a result, under virtually every state judicial code, discipline may be imposed upon a judge for conduct which violates no particular rule but which is thought to create an "appearance of impropriety.?

This Article examines the disciplinary use of the appearance of impropriety standard from a theoretical and practical standpoint. The history of the standard is explored together with the most debated aspect of the rule ? whether the appearance of impropriety prohibition can survive a vagueness challenge. The inescapable conclusion is that it cannot. A cost-benefit analysis further discloses that the disadvantages of the rule clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is proposed that the use of the appearance standard as a disciplinary rule should be discontinued or, in the alternative, that a limiting construction should be placed on the "appearance of impropriety" thereby supplying the specificity needed to meet due process requirements.

Full post as published by Legal Theory Blog on May 31, 2010 (boomark / email).