Monday, October 20, 2008

The Judicial Process, Defined

In the immediately preceding post I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own. My aim in this post is to talk a little bit more about what I've got in mind when I talk about the judicial process as a field of learning. Probably the best way to do so is to describe the seminar I'm teaching this semester - "Judging and the Judicial Process" - which provides a pretty good first cut.

Our focus, as I put it in the course description, is "on courts as institutions and on judges as the primary actors within those institutions." We started with what one might call the "standard" model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on. Having blown it up, we tried to put it back together. Is there still a case to be made for formalism? Is pragmatism the way to go? (Judge Posner appears on the syllabus often enough that he ought to get credit for co-teaching the class.) Are we left to rely on the good faith of judges and Karl Llewellyn's "major steadying factors?" Now we're on to some more discrete topics: are judicial activism and judicial independence meaningful concepts? What purposes do judicial opinions serve? What's the proper role of precedent? What are the relative merits of specialized versus generalist judges? Although I had initially thought we'd start with judicial selection, it turns out that we'll end there (on the theory that only after we've been thinking about the descriptive and normative aspects of judging for a while can we really address the question of how judges ought to be selected).

The seminar has been a blast. The students are engaged, the discussion is lively, and the comments are thoughtful (and I've gained a lot from the exercise of putting it all together). So it's somewhat puzzling to me that this isn't standard fare in U.S. law schools. No doubt some of it gets covered here and there in the curriculum. But as far as I can tell that coverage is typically piecemeal. Sometime over the medium term I'd like to turn these seminar materials into a casebook. As I suggested last week, it's apparent to me that there are enough people out there writing on judicial process topics that some of you might be persuaded to teach a class on the subject. Either way, there's still plenty of time to join the movement.

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