10 - Judging the Future
A Leap in the Dark
Published online by Cambridge University Press: 05 June 2012
Summary
There are few generalizations that can be made about what it takes to be a great judge. If the previous eight chapters have any unifying thread, it is that there is no proven or assured way to become or be recognized as a great judge. And perhaps that is what best defines greatness. It is the willingness of some judges to be different and make their own mark that sets them apart from their colleagues. Great judges recognize that there is no playbook that can be consistently relied on to get the job done. It is a mark of some judges’ greatness that, consciously or otherwise, they are prepared to do it their way – they rewrite in whole or part the playbook itself. These people are originals who, by example and excellence, reveal a way of being a judge that makes what has gone before no longer quite so obvious, acceptable, or ennobling.
The test of good judging might well be less about getting it right than about doing it well. But the test of great judging is about not only doing it well but doing it in a way that obliges others to rethink what is involved in judging well. Great judges are more accepting of law's rule-based existence and less naïve about politics’ promise of transformation. In short, they recognize that they are situated within an official tradition of legal reasoning but insist that there is ample room to experiment within and, as importantly, with its confines. They play as much with the rules of the game as within them. Because they treat adjudication as a ludic exercise of the most serious dimensions, such judges are not stymied or troubled by law's apparent fixity or brute thereness. Whereas others experience limits and restrictions, they see openings to be explored and opportunities to be grasped. For them, the primary task of adjudication is about imaginative creativity as much as anything else. In great judges’ hands, law is something to be reworked into a better and more fulfilling image of itself. Although good judges are lauded for their technical abilities in parsing cases and rooting out inconsistencies, great judges are celebrated for their vision and inventiveness.
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- Laughing at the GodsGreat Judges and How They Made the Common Law, pp. 267 - 278Publisher: Cambridge University PressPrint publication year: 2012