The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

G. Preserving Proportion

Guido Calabresi was born in Milan, Italy, and educated in the United States, receiving B.S. and LL.B. degrees from Yale University, and in England, where he was a Rhodes Scholar at Magdalen College ( Oxford). He clerked for Supreme Court Justice Hugo Black before returning to teach law at Yale in 1959. Calabresi was appointed Sterling Professor of Law in 1978 and Dean of the Law School in 1985. His fields of expertise include torts and economic analysis of the law. Among his books are The Cost of Accidents: A Legal and Economic Analysis ( 1970) and A Common Law for the Age of Statutes ( 1982). The following excerpt is from "When Ideals Clash," a chapter in his 1985 work, Ideals, Beliefs, Attitudes, and the Law. In this passage, Calabresi discusses the Supreme Court's treatment of the underlying conflict of values between the "pro-choice" and "pro-life" sides in the abortion debate.

The Court, in fact, used a more complex--but even more unfortunate--method of trying to duck the underlying conflict. The Court did not say that a fetus is not alive, and did not suggest that the metaphysics of those who believe that life occurs at conception are not true. It avoided the issue of when life begins, saying that this issue was something on which it could not speak. But the Court then went on to say that for purposes of our Constitution, a fetus (at least until independently viable) is not a person. This last statement is a deeply troublesome one in a legal system like ours.

In the first place, from the standpoint of constitutional law in most other legal contexts, the statement was probably incorrect. That is to say, the statement completely ignored the gravitational pull of other areas of the law. Our law has for centuries given a fetus substantial kinds of recognition and protection. It is quite doubtful, for example, whether (before Roe v. Wade) a state law which denied an unborn fetus the right to inherit from its parents would have been constitutional. More likely, such a law would have violated the equal protection clause of the Fourteenth Amendment. (Once again, I am not concerned here

-142-

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The Responsible Judge: Readings in Judicial Ethics
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Preface xiii
  • Part I The Ideal Judge and the Partial Judge 1
  • A. The Impartiality of God 3
  • B. The Mask of Impartiality 22
  • C. Monsters 35
  • D. Political Judges 50
  • Part II Judging 97
  • A. Waiting for the Litigants 105
  • B. Deciding on the Record 113
  • C. Adjudicating the Case at Hand 115
  • D. Creating a Precedent 121
  • E. Following the Rules Laid Down 129
  • F. Exercising Judgment 138
  • G. Preserving Proportion 142
  • H. Displaying Compassion 148
  • I. Deliberating with Colleagues 156
  • J. Writing and Dissenting 171
  • K. Judging in a Different Voice 188
  • L. Managing Public Institutions 208
  • M. Settling a Case 223
  • N. Blowing the Whistle? 243
  • O. Retaining One's Humanity 257
  • Part III Independent and Accountable 265
  • A. Proclaiming Independence 267
  • B. The Duty of Recusal 278
  • C. Forms of Accountability 309
  • Selected Bibliography 387
  • Index 391
  • About the Editors *
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