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Abstract:
What happens when the parties to an appeal simply miss the point? This article explores the extent to which an appellate court should involve itself in the process by adding to or refining the arguments the parties have made to support the issues they have properly raised. It examines whether the role of an appellate court is simply to decide among the arguments explicitly set before it, or to reflect on the issue the parties have brought to the court and to reach the best resolution of that issue in light of their own contribution to the analysis. Furthermore, the article looks at the extent to which the court must or should involve the parties - the extent to which they must afford the parties an opportunity to engage with the new argument or reasoning before issuing an opinion - in the event that the court does come up with its own alternative arguments or reasoning on a particular issue. It ultimately concludes that, above all else, these questions require further open and deliberate examination by the appellate courts that deal with them on a regular basis. It appears that judges may currently engage in this kind of involved judging without making it explicit, and/or without explaining why they are justified in so involving themselves. This article suggests that judges serve in some respects as trustees or custodians of the law, and therefore have an active role to play in directing individual cases to the best and clearest conclusions. Until any further self-examination by appellate courts should occur, the article proposes that judges, as trustees of the law, should at least be strongly encouraged to be more involved, by using their discretion, to improve the state of the common law by implementing what they see as the most correct reasoning.

Abstract:
This article proposes that the fundamental goal of judicial ethics and practice is to achieve actual justice in judicial decisionmaking. To that end, it argues that current attempts to resolve concerns about impartial judicial decisionmaking through appearance-based recusal and disqualification standards are ill-conceived and ineffective. It proposes a substantial curtailment of recusals and a corresponding strengthening of the judicial duty to sit. It proposes to resolve fundamental concerns about actual justice, and at the same time to address concerns about public confidence in the judiciary, through a requirement that judges provide explanations of adequate internal legal reasons supporting their dispositive decisions and a focus on those reasoned elaborations in the assessment of the legitimacy of both the decisions and the performance of the judges who reached them, rather than a focus on mere guesswork about what might be influencing judges in their deliberations.

judges, ethics, recusal, bias

Abstract:
The title of the symposium for which this essay was written asks whether we have ceased to be a common law country, and proceeds to tie that question to the issue of publication of judicial opinions. Although an answer to that question depends a great deal on an understanding of what it means to be a common law country, this essay begins by saying that if we have not already ceased to be a common law country, we soon shall, unless there is a significant shift in the norms for production of judicial decisions. The essay proposes that a required practice of publication of all judicial opinions would better satisfy the judicial duty to account for management of the common law and provide a greater opportunity for the flourishing of judicial virtue and the revitalization of a meaningful common law tradition.

Publication is used here as convenient shorthand to describe a practice of providing written explanations (of whatever length) of judicial decisions, made available to members of the public (in whatever format), without any restraint on their future use or citability. In light of the recent controversy of proposed Federal Rule of Appellate Procedure 32.1, the remarks in this essay are limited to the publication practices of the federal appellate courts.

This essay proposes that such a publication requirement begins by resolving a problem of perception, but has the potential to do much more for the substance of the common law tradition. It focuses on only one of the many social functions of judging - to maintain and improve the integrity of the corpus of the common law through the exercise of judicial virtue - and attempts to elaborate on how publication may help maintain our common law system in its best state by allowing opportunities for judicial virtue to flourish.

Judges, ethics, publication, virtue, accountability