The Responsible Judge: Readings in Judicial Ethics

Although we can formulate a simple definition of judging--the task of forming and giving an opinion--it is actually composed of many activities: resolving disputes, setting precedents, following rules, deliberating with colleagues, displaying compassion, and so on. Each of these activities raises questions of judicial ethics, and certain of these questions cut across all the activities.

For example, giving reasons for outcomes is a responsibility that attaches to most aspects of judging. Sometimes this responsibility is discharged at great length, especially in appellate court decisions, but it may be done informally in trial courts at all levels. In giving reasons, a judge explains an outcome by providing an account of the intellectual process by which it was derived. Such an account, if it is perspicuous, displays the authoritative basis of the outcome in law. It also makes the outcome intelligible, both to the immediate parties and to others potentially affected by the decision, thereby showing respect for citizens as rational beings. Outcomes that have an evident basis in law allow citizens to plan their endeavors with foresight regarding the likelihood of official intervention.

Further, respect for litigants is optimized when the reasons a judge provides for an outcome are based explicitly on the arguments the litigants themselves presented to the court in support of their claims. In this way, their participation in the decision making is enhanced and their fate is made to rest, to a degree, on their own understanding of their situation. Of course, the litigants' arguments do not necessarily encompass all relevant legal questions and may, in any event, be self-serving; the judge often enough has to reach beyond the litigants' presentation to find grounds for a proper decision. However, even then we may think the judge is obligated to be responsive, at least, to the litigants' assertions, and any failure in that regard should be explained. Guido Calabresi applies this idea in a forceful way (in selection 7) when he criticizes the Supreme Court's landmark decision in

-97-