The Judicial Process, Defined

Posted on Categories Judges & Judicial Process, Legal Education

Last week 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.

Cross posted at PrawfsBlawg.

2 thoughts on “The Judicial Process, Defined”

  1. I think the most interesting questions raised by studying the judicial process are what are judges doing when they decide cases and what should judges be doing when they decide questions. From the perspective of teaching or learning the material, the most difficult aspect of these questions is that there is no “right” answer. Judges are generally reluctant to discuss how they go about making their decisions, with notable exceptions like Judge Posner. There does not appear to be a dominant theory of the judcial process. In fact, the numerous competing theories all have valid insight into the judicial process. From the material that I’ve been exposed to as a student in the “Judging and the Judicial Process” seminar, the theories explaining the judicial process do not fall into relatively neat categories that might serve to frame the discussion, like judicial activism vs. strict constructionist or original intent vs. a living constitution.

    I think that the study of the judicial process has difficulty catching on as a distinct field because of the level of involvement (from both teacher and student or from author and reader) that goes into understanding just the basics of what is being discussed. I think the study of the judicial process is important both academically and practically. After all, since judges are the ones who say what the law means, surely the legal profession should take some time to try and understand what judges are doing when determining what the law means.

  2. As a practitioner whose livelihood depends in large measure on the outcome of the judicial process, I am focused on issues of the judicial process daily. You should consider me — and legal practitioner-writers like me — a potential participant in the movement aimed at understanding this process intellectually.

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