I realize I've gotten a not entirely welcome – though not entirely undeserved – reputation as a maverick, naysayer, scoffer, gadfly, faultfinder – in short a committed candid critic of the American legal system, and in particular of the federal judiciary, the branch of the system that I know best, having been a federal court of appeals judge for the past 34 years, and that I hammer most frequently. My just-published book Divergent Paths: The Academy and the Judiciary (2016) will cement that reputation.
What is odd is that most of the criticism I receive is of my writings or speeches about the judicial process, as exemplified by this article. Criticisms of my judicial opinions are rare, even though I have written more than 3100 published opinions in my 34 years as a federal appellate judge. And such criticisms as the opinions do receive differ in tone and content from the criticisms of my extrajudicial comments on the judicial process. Criticisms of my opinions tend to focus on my citing Internet websites in them.
In the present article, however, and its sequel (Part II, to be published in the next issue of this journal), I try to retreat some distance from controversy by confining my discussion to those features of the federal judicial process that are at once demonstrably unsound and readily corrigible without need for federal legislation or radical changes in legal doctrines or practices. That is not to say that anything I criticize will be changed, however convincing my critique. For law is wedded to the past as no other profession is. You don’t hear doctors bragging about thirteenth-century medicine, but you hear lawyers bragging about the thirteenth-century Magna Carta (without even understanding it – they think it guaranteed the ancient liberties of the English, whereas in fact it guaranteed just the rights of barons, and in any event was soon annulled, later restored, and eventually demoted to the purely symbolic).
Part I (PDF)
Part II (PDF)
Read more at The Green Bag