Document Type

Response or Comment

Publication Date

1-2008

Abstract

Oliver Wendell Holmes-a great judge-said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship. That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy depends on that authority. That duty obliges courts to explain their decision and reasoning lucidly, since only then can the litigants and we the governed tell what is required of us and see that the court acted lawfully. No court, no judge, no person always achieves high standards of craft. But a court that betrays its duty of craftsmanship is a court that has lost its moral authority and wrongfully asserted its legal power.

Comments

Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.

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