The Failure of Judicial Recusal and Disclosure Rules: Evidence from a Field Experiment

Dane Thorley | March 12, 2023

U.S. courts rely predominately on judicial self-recusal and in-court disclosure to address judicial conflicts of interest and maintain a critical perception of impartiality. But these approaches fail to account for the legal, institutional, and social dynamics that surround the relationship between judges, attorneys, and the adjudicative process. In reality, judges rarely use their discretion to disclose conflicts or recuse themselves, and attorneys do not ask them to do so. If we understand both the legal and extralegal incentives at play in these decisions, none of these outcomes should be surprising. The shortcomings of recusal and disclosure rules are particularly salient in the context of judicial campaign finance, where elected judges face the acute dilemma of being assigned to a case in which one of the parties or attorneys has made financial contributions to the judge’s election campaign.

To support these substantive claims, this Article features the results of a novel randomized field experiment—the first-ever blinded experiment conducted on judges in active cases. In the experiment, Wisconsin and Texas civil cases that feature donor attorneys are identified and a portion of the judges presiding over these cases are randomly assigned to receive a letter identifying the potential conflict and requesting recusal. Judicial and attorney behavior is then tracked over the life of the case to observe how often judges recuse, whether they disclose the conflict, how attorneys respond to those disclosures, and whether the intervention of a third party has any effect on these decisions. The experimental results provide much-needed empirical confirmation of growing skepticism surrounding judicial recusal and raise serious doubts that the most popular solution to the recusal problem—increased judicial disclosure—will do much to help at all. Building on these findings, I explore procedural and institutional alternatives that better account for the realities of judicial conflicts of interest and the incentives of court actors.