Dr Inbar Levy1, Professor Andrew Higgins2
1Melbourne Law School, Carlton, Australia, 2University of Oxford , Oxford , United Kingdom
The right to an impartial and independent tribunal is fundamental to the administration of justice and public confidence in it. However the test for bias is not informed by any scientific literature on cognitive biases, and while courts purport to give effect to the views of a fair-minded and informed member of the public as to when a judge should be disqualified, little attention has been given to what the public thinks in reality. Using doctrinal analysis and drawing on psychological literature, the paper argues that the law must be re-examined with a view to closing the gap between the case law on which factors give rise to a reasonable risk of bias, public attitudes, and studies on human decision-making. The article proposes a new framework for the law of bias, including partial codification identifying circumstances when judges should and should not sit, based on legal policy considerations, measured public opinion, and relevant psychological studies, and new procedures and tests for courts dealing with cases that are not identified as automatic recusal or non-recusal scenarios under a code.
Inbar Levy has been a lecturer at Melbourne Law School since 2015. She has completed her DPhil in Law at University College, Oxford, where she was awarded the Modern Law Review Doctoral Scholarship and the Oxford Faculty of Law Scholarship. Her project, titled ‘Behavioural Analysis of Civil Procedure Rules’ investigates the implications of findings derived from empirical behavioural psychology for legal reasoning and practice. She had been awarded a Joint Law and Psychology LLB with Magna Cum Laude honours and subsequently an LLM with similar honours from the Hebrew University of Jerusalem. Before going to Oxford, she served as a legal advising officer in the Military Advocate General unit of the Israeli Defense Forces. Inbar held a Visiting Research Fellow position at Columbia Law School in the City of New York and a Visiting Researcher position at Harvard Law School.