Courting controversy: Judges and the problems caused by extrajudicial speech

This paper explores the problems for judicial impartiality that a judge’s extrajudicial speaking or writing on academic matters may create. Examples from New Zealand and abroad demonstrate such extrajudicial commentary may lead to a finding of apparent bias or require that a judge recuse himself from hearing a case. The current regulation of extrajudicial speech, as ascertained from judicial conduct codes and case law, provides that judges can speak and write extrajudicially on such matters but must exercise caution in the tone and language they use. The paper concludes that this is an appropriate approach and that a solution of judicial silence is undesirable. This conclusion is supported by empirical research conducted by the author which shows that the incidence of extrajudicial writing in New Zealand is low.