Judges as Trustees: A Duty to Account and an Opportunity for Virtue
17 Pages Posted: 5 Apr 2006
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.
Keywords: Judges, ethics, publication, virtue, accountability
JEL Classification: K10
Suggested Citation: Suggested Citation