#14 - Concept Reference, Must Be True, Author's Perspective

[Dancingbambarina]

Hi attorneyatpaw,

This is a tricky question, and Answer A is a tempting answer that many people chose.

While you are right that the correct answer to these questions may not be explicitly stated in the passage, it does need to be supported by information in the passage. In other words, it should follow the author's line of reasoning/train of thought.

The question is asking for "an accurate description of the effects of the current approach to recusal and disqualification of judges" according to the author.

The first step in answering this question is prephrasing an answer based on what the author stated about the effects of the current approach in the passage. We know that the author is critical of the current system and believes that it should be replaced with a written explanation of the judge's reasoning (lines 29-37). We also know that the current system focuses not just on actual bias but also on even the "appearance of impropriety" (line 5). Finally we know that the author worries that focusing on the appearance may risk overlooking cases of actual bias that are not apparent to observers (lines 22-24).

The second half of Answer E exactly matches one of the points in the passage and our prephrase. The next step is to test the first half of the answer to see if this is a "half-right, half wrong" answer trap, or if this is indeed the correct answer.

As for first part of Answer E, you're correct that:

the passage never explicitly talked about the first part of the answer, "Judges are sometimes removed from cases for bias even though they are not actually biased"

However, while this isn't explicitly stated, it can reasonably be inferred from the content in the passage. First, the passage discusses the idea of "the appearance of impropriety" (line 5) and then states that "Judges are expected to recuse (i.e. remove) themselves from any case in which their impartiality might reasonably be questioned" (lines 5-7). This means that judges are expected to remove themselves in certain circumstances even if the judge is not actually biased in reality simply because it may appear that the judge could be biased given the situation.

The passage then goes on to explain how "the rules provide vague guidance at best" (line 12), which further suggests that judges may err on the side of caution and recuse themselves even if they are not actually biased, just to avoid any appearance of bias.

Finally, the author recommends eliminating disqualification motions alleging bias, "whether actual or apparent" (line 33), describing this as an "unreliable mechanism" (line 33).

In a sense, the idea that judges are sometimes removed even when they aren't actually biased is simply the other side of the problem of the current approach according to the author, which is that the current approach isn't focused on what really matters, specifically whether the judge's decision can be defended following legal reasoning.

As for Answer A, we don't actually know how the author feels about the general public's view on this issue, and it would be too much of a stretch to assume this. For all we know, it is possible that the public does feel adequately assured by the current system because the general public has no idea of the problem that the author is raising in the passage. In other words, the author isn't necessarily raising this issue because the public is worried about it, instead the author is worried about it even if this is generally not well known.

Surely the 2nd paart of D is correct, supported by lines 5 to 7. If that happens, it would be plausible to infer the second part of D. But am I right the first part part is too strong with RARELY, which is much stornger than MANY, which basically only implies that it happens sometimes which is common sense as thousands of cases occur every day.

Thank you so much.

[Dana D]

Hey Dancing,

Lines (5-7) don't imply that judges are removed from many cases. These lines state that judges are expected to remove themselves anytime they would be biased, but they don't say this happens 'many' times - or any at all. Additionally, the author wouldn't agree with the first half of answer choice (D) - these same lines tell us that judges are not allowed to sit on cases where they are biased - ever. They might do so in actual practice, but they are not allowed to do so.

[miriamson07]

Hi attorneyatpaw,

This is a tricky question, and Answer A is a tempting answer that many people chose.

While you are right that the correct answer to these questions may not be explicitly stated in the passage, it does need to be supported by information in the passage. In other words, it should follow the author's line of reasoning/train of thought.

The question is asking for "an accurate description of the effects of the current approach to recusal and disqualification of judges" according to the author.

The first step in answering this question is prephrasing an answer based on what the author stated about the effects of the current approach in the passage. We know that the author is critical of the current system and believes that it should be replaced with a written explanation of the judge's reasoning (lines 29-37). We also know that the current system focuses not just on actual bias but also on even the "appearance of impropriety" (line 5). Finally we know that the author worries that focusing on the appearance may risk overlooking cases of actual bias that are not apparent to observers (lines 22-24).

The second half of Answer E exactly matches one of the points in the passage and our prephrase. The next step is to test the first half of the answer to see if this is a "half-right, half wrong" answer trap, or if this is indeed the correct answer.

As for first part of Answer E, you're correct that:

the passage never explicitly talked about the first part of the answer, "Judges are sometimes removed from cases for bias even though they are not actually biased"

However, while this isn't explicitly stated, it can reasonably be inferred from the content in the passage. First, the passage discusses the idea of "the appearance of impropriety" (line 5) and then states that "Judges are expected to recuse (i.e. remove) themselves from any case in which their impartiality might reasonably be questioned" (lines 5-7). This means that judges are expected to remove themselves in certain circumstances even if the judge is not actually biased in reality simply because it may appear that the judge could be biased given the situation.

The passage then goes on to explain how "the rules provide vague guidance at best" (line 12), which further suggests that judges may err on the side of caution and recuse themselves even if they are not actually biased, just to avoid any appearance of bias.

Finally, the author recommends eliminating disqualification motions alleging bias, "whether actual or apparent" (line 33), describing this as an "unreliable mechanism" (line 33).

In a sense, the idea that judges are sometimes removed even when they aren't actually biased is simply the other side of the problem of the current approach according to the author, which is that the current approach isn't focused on what really matters, specifically whether the judge's decision can be defended following legal reasoning.

As for Answer A, we don't actually know how the author feels about the general public's view on this issue, and it would be too much of a stretch to assume this. For all we know, it is possible that the public does feel adequately assured by the current system because the general public has no idea of the problem that the author is raising in the passage. In other words, the author isn't necessarily raising this issue because the public is worried about it, instead the author is worried about it even if this is generally not well known.

Hi powerscore,

I am having trouble seeing how the first part of answer choice E must be true. I can see clearly that the second part is supported.

I've reviewed the answers in this thread, as others have asked the same question. However, I have a few disagreements with the points in this powerscore response.

1) First, the passage discusses the idea of "the appearance of impropriety" (line 5) and then states that "Judges are expected to recuse (i.e. remove) themselves from any case in which their impartiality might reasonably be questioned" (lines 5-7). This means that judges are expected to remove themselves in certain circumstances even if the judge is not actually biased in reality simply because it may appear that the judge could be biased given the situation.

I don't think that because judges are expected to remove themselves when their impartiality might reasonably be questioned, it necessarily follows that a judge would sometimes remove themselves even though they are not actually biased.

2) The passage then goes on to explain how "the rules provide vague guidance at best" (line 12), which further suggests that judges may err on the side of caution and recuse themselves even if they are not actually biased, just to avoid any appearance of bias.

I think it is possible that if the rules "provide vague guidance at best," this could only lead to judges NOT removing themselves even when they are biased. It doesn't necessarily mean judges will be removed when they are not biased.

3) Finally, the author recommends eliminating disqualification motions alleging bias, "whether actual or apparent" (line 33), describing this as an "unreliable mechanism" (line 33).

Similar to my reasoning above, I think it is possible that the author recommends eliminating disqualification motions alleging bias because it leads to the adverse effect of judges not being removed even when they are biased. In other words, it is possible the author is only proposing the elimination of this method because it is ineffective. I do feel, however, that this part of the passage may have a stronger implication that judges are removed even when they are not biased than the other two parts I addressed above. This is because I think the natural result of a faulty disqualification motion alleging bias would be people being accused of bias they do not have. However, although this is the "natural" response, I still do not see how it is necessary.

Regardless, by process of elimination, I think one could land at E. I did want to ask, however, about my reasoning regarding the three points above. Please let me know how I may be seeing things incorrectly. Thank you!

[Dana D]

Hey Miriam,

You are absolutely right that it does not necessarily follow that judges will be recused when they are not actually biased but might appear to be so - however, that is not the question. The question asks you what the author thinks is an accurate description of the current recusal process, so we need to put ourselves in the author's shoes here, and they spend the entire passage lamenting the possibility that this misguided process will lead overly cautious judges to recuse themselves when they're not biased based on concern for their appearances and potentially fail to recuse themselves when they are actually biased. This is a very opinionated passage; of course the outcomes the author describes are not sureties, but the author is strongly arguing that they are possible flaws in the recusal process we should consider.

Hope that helps!