The Unethical Judicial Ethics of Instrumentalism and Detachment in American Legal Thought

16 Pages Posted: 13 Sep 2007

See all articles by Keith Swisher

Keith Swisher

University of Arizona - James E. Rogers College of Law

Abstract

This Article cautions that, in the main, judges should rule equitably and primarily on the facts and circumstances before them, with attention paid less to the systemic and societal effects of decisions and more to the immediate consequences on the parties sub judice. The preceding directive, it will be seen, is not only ethically implicated, but is inherent in the proper role of the judge. In Parts I and II, this Article briefly interprets the history of the intellectual counter-development over the last one-hundred years, beginning with Holmes and ending with emphases on Duncan Kennedy's implicit and Robert Cover's explicit rebellion against the ethic. The belated decline of instrumentalism and detachment in American judicial thought is a welcome event in which judges of all levels should become (more) aware of the tangible - even violent - consequences of their decisions on the parties before them and respond ethically to that reality. In Part III, the Article employs a discussion of two very recent United States Supreme Court cases, a comparison of which illustrates the mistake of judicial detachment and instrumentalism. The Article concludes that such categorical - or even presumptive - reasoning is morally wrong and judicially irresponsible.

Keywords: Judicial Ethics, Clark v. Arizona, Holmes v. South Carolina, American Legal Thought

Suggested Citation

Swisher, Keith, The Unethical Judicial Ethics of Instrumentalism and Detachment in American Legal Thought. Willamette Law Review, Vol. 43, No. 4, 2007. Available at SSRN: https://ssrn.com/abstract=1014272

Keith Swisher (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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