Further thoughts on judicial fallibility and transparency

June 5, 2014

I received some very thoughtful responses to my post this weekend about whether we ought to have more transparency (i.e., more publicity) when courts correct their mistakes. The general theme of these responses was that in fact some judges have been forthright and transparent in admitting that they’ve made mistakes, that this has been well-received, and that this ought to be encouraged.

To this effect, let me recommend two pieces of reading. One is by Judge Andrew Hurwitz, an inordinately timely essay titled “When Judges Err: Is Confession Good For The Soul?”. Judge Hurwitz argues:

My thesis is that we all would be better off if judges freely acknowledged and transparently corrected the occasional ““goof.” Confession is not only good for the soul, it also buttresses respect for the law and increases the public’s understanding of the human limitations of the judicial system.

The other is this concurring opinion from almost 30 years ago by California appellate judge Rick Sims. It begins:

I write separately to fall on my sword.

The majority opinion treats with charity People v. Foley, which I wrote. Although Foley reaches a correct result, its analysis is wrong … because I inexplicably failed to discover the controlling statute.

And it ends:

This court has been of the view that “absolution requires something more than an unadorned confession of [judicial] error,…” (Taylor v. Jones.) If that be true, then surely my destiny lies in that place to which more than one lawyer has wished that I would go.

As for my prior post, let me be clear that I am all in favor of applauding judges who are transparent about correcting their mistakes. My concern is only about what happens in a second-best world. If there is a lot of harping on the mistakes or shaming judges who make them, that might cause courts to be more defensive about admitting them in the first place. And that’s worrisome precisely because it is good for judges to admit their mistakes.

But I would love to see our culture change, and I would love to learn that I am being overly pessimistic about what our culture truly is. Maybe the public reaction will be positive more often than I had thought. As one of my correspondents pointed out, a lot of lawyers think the courts are wrong about half the time anyway.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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