Prawfsblawg has a post about a just-published paper, from J. Mark Ramseyer of Harvard Law School, with an interesting thesis: better to have judges that are not brilliant and creative. Prawfsblawg notes of Ramsmeyer’s paper:
Taking [Jordan v.] 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.”
Prawfsblawg quotes from the paper:
[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. . . .
This is quite the proposition!
See the Prawfsblawg post for a much more detailed discussion and links to the paper.
One Comment
Mitchell Rubinstein
Prof. Ramseyer’s thesis makes absolutely no sense to me. Think about the great judges; Cardozo, Holmes, Hand. They were great jurists because they were creative and thought outside the box. I might even include Judge Posner in this group. You want the brightest and the best-period.
Another way of looking at this is to compare the federal judical system with your state system. In New York, for example, it’s a night and day difference in appearing before most judges in Brooklyn State Supreme Court and the Eastern District of New York which literally down the block. The federal judges, by and large and smarter and brighter and that is what we as a society should want.