Judge Barker on “Imaginative Judging”
Judge Sarah Evans Barker delivered a terrific Hallows Lecture at the Law School yesterday on “imaginative judging.” She was engaging obliquely with, and putting a fresh spin on, the otherwise increasingly tiresome debates over “judicial activism.” While the activism debate generally focuses on the law-declaring role of appellate judges, Judge Barker focused on the case management role of trial-court judges. Although case management may seem far-removed from law-declaring, Judge Barker observed that judges operating in either mode may sometimes face situations in which following the conventional rules of formal legal analysis produces absurd results. Where such situations are encountered in the trial court, Judge Barker endorsed the use of imaginative problem-solving. As an example, she cited her own work in bringing together public officials in Indianapolis to address chronic constitutional violations in the local jail. Had she played a more conventional, passive role as the judge in pending constitutional litigation, the result (in her view) would have been a largely ineffectual remedy. By imagining a different sort of role for herself, and engaging the key players outside of the formal legal process, a much better result was achieved.
