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Wednesday, August 08, 2007

Ramseyer's Case Against "Great" Judges

J. Mark Ramseyer of Harvard Law School has just posted on SSRN an interesting paper titled "Not-So-Ordinary Judges in Ordinary Courts: Teaching Jordan v. Duff & Phelps."  The final version of the paper, published in the Harvard Law Review, is available on PDF here.  Taking Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it "shows the risk inherent in appointing judges too creative and independent for the job."  He adds:

[J]udging is not a job for unconstrained, innovative minds.  Judges are government bureaucrats.  Their job is to be honest, to unravel a set of facts, to decide what law applies, and not to think too hard about it all. . . . Judges may enjoy creating better rules, but judicial experimentation necessarily makes it harder to predict what judges will do. . . . [To encourage settlement,] the courts need to operate rigidly and mechanically -- judges need to abandon their intellectual ambition and work as lower-level bureaucrats. . . . [A]ppointing judges with the intelligence and creativity of Easterbrook and Posner is -- not to mince words -- exactly what we should not be doing.  As judges, they simply do too much: they muddy the law in trying to fix it, and they worsen the law by encouraging (through example) their less talented peers to do so as well.

It's a very interesting (and short!) paper.  Daniel Farber famously (depending on how you define the word) made the case against "brilliance" in constitutional scholarship; it's nice to see Ramseyer making it in the judicial arena.  It runs contrary to the usual culture here and in other common-law systems, but especially in the U.S., which tends to mythologize the "great judge" -- to exalt Hercules above poor Herbert. 

My own wholly intuitive view has tended to be that Ramseyer is half-right.  The common run of judges should indeed be "good" rather than "great," and the judicial system would suffer if too many of them were "great."  But there are real benefits for the law in having a small proportion of brilliant judges in the legal system, and those benefits outweigh the predictability-disturbing effects of such loose cannons.  But Ramseyer quite rightly zeroes in on one problem with this argument: that the less brilliant Herberts may try to emulate Hercules, thus reducing the benefit of having a large stock of mostly dutifully "dull" judges.  It doesn't ultimately change my view, but it's an excellent point.  I must say I don't see it as likely that the Senate will unite any time soon against a judicial nominee on the grounds that she is too "creative and independent," at least explicitly, although I imagine that the difficulty of getting a controversial nominee through a closely divided Senate often amounts to the same thing.      

Posted by Paul Horwitz on August 8, 2007 at 05:47 PM | Permalink


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Much as I enjoy the irony of turning the efficiency argument on Posner and Easterbrook, Ramseyer’s argument seems problematic. It suffers from all the disabilities of traditional L&E reductionism.

1. On one reading, the article assumes that every case in Fed court is a diversity action, which is obviously not the case.

2. Even on a more limited reading, the argument assumes that litigants in federal court are two private parties that have classical settlement/litigation calculus. This seems to ignore the vast bulk of federal appellate litigation e.g., ideologically-oriented litigation, constitutional litigation, private parties who litigate because they need the precedent (interpretation of a statute, regulation etc), parties litigating with the government (which faces a different settlement calculus), not to mention the entire federal criminal docket. In fact, my guess is that classic private law diversity case represents a very small % of federal appeals.

3. Even on the efficiency ground that the article advocates, parties already have such a choice by way of arbitration. One can make an easy L/E styled argument that says that fact that the two large commercial parties did not chose arbitration means that they want to t court do to its thing. In the PIL context, its my impression that most international financial transactions who do not opt for arbitration chose jurisdiction in either New York or London, not Berlin or Tokyo. To the extent this is correct, even the parties the article most directly refers to seem to behave differently.

4. For an efficiency oriented argument, there seems preciously little thinking about cost-benefit. Have there been no gains owed to the brainy and confident or “great” American Judge (Marshall, Story, Kent, Holmes, Brandies, Cardozo, Hand, Frankfurter, Traynor, Brennan, Marshall, Scalia, Breyer?) If one complains about the costs, they must consider the benefits as well. I find it hard to believe that Ramseyer things that the American experiment of vindicating rights via the courts has produced no benefit.

5. But perhaps most fundamentally, its these types of judges that enable legal development. The reason the common law has changed over its 800 year history is exactly because of the types of moves the article deplores. Now unless the author thinks we ought to have the common law as it was at the time of the Norman conquest, he must provide for an alternate mode of legal change. I can only assume, that following the civilian model, he thinks it should be legislative. But of course, its not that legislative over (private) law is without problems. Here again the question arises as to the costs/ benefits of judicial vs legislative responsibility for legal development.

Its kind of interesting that just as the civil world is beginning to consider more common law solutions, this article wants to turn the common law into the classical model of the civil law.

Posted by: Chaim Saiman | Aug 10, 2007 10:15:39 AM

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