Judges as Trustees: A Duty to Account and an Opportunity for Virtue

The title of this symposium asks whether we have ceased to be a common law country and proceeds to tie that question to the issue of publication of judicial opinions. Although an answer to that question depends a great deal on an understanding of what it means to be a "common law country," I will begin by saying that if we have not already ceased to be a common law country, we soon shall, unless there is a significant shift in the norms for production of judicial decisions. The related question I shall pursue in this essay is what might be one of the advantages of changing course toward a more perfect common law system, insofar as that change would involve the practice of publication of opinions. In this essay, I propose that a required practice of publication of all judicial opinions (as I shall define that practice below) would both better satisfy the judicial duty to account for management of the common law and provide a greater opportunity for the flourishing of judicial virtue and the revitalization of a meaningful common law tradition.It is important to note at the outset that, in light of the recent controversy over proposed Federal Rule of Appellate Procedure 32.1 and my own experience as a clerk for a federal appellate judge, the remarks in this paper are limited to the publication practices of federal appellate courts. There is certainly much of interest to be said about publication of opinions and the maintenance of a common law system with reference to the district courts and the Supreme Court and, indeed, about how the publication of opinions at those levels plays into the conversation at this symposium about appellate opinions, but all of that must be left to another occasion.2It is similarly important to set out from the beginning the meaning of the term "publication" as it is used throughout this piece. In using this term, my primary concern is not with the form in which opinions are made available-this is not a matter of paper versus electronic issuance of opinions. I use the term "publication" as a convenient shorthand to describe a proposed practice of written explanations (of whatever length) of judicial decisions that are made available to all members of the public (in whatever format) and come without any restraint on their future use or citability. As I will go on to discuss at greater length below, a requirement of this kind of publication of all judicial opinions presents an advantage that begins by resolving a problem of perception but has the potential to do much more for the substance of the common law tradition.There are, of course, many interpretations of what it means to be a common law system and even more theories about the social functions of the law in general and judging in particular. This essay will not attempt to solve those larger questions. Instead, it will focus on one social function of judging-that is, to maintain and improve the integrity of the corpus of the common law through the exercise of judicial virtue3-and it will attempt to elaborate on how publication may help maintain our common law system in its best state by allowing opportunities for virtue to flourish.4To answer the question posed by the symposium and the related question posed in this paper, it is necessary to provide at least a sketch of what makes up the corpus of the common law system at issue. For the purposes of this paper, I take the corpus of the common law to be the embodiment of the community's shared values as expressed in the full array of specific applications of the law by judges.5 The corpus is primarily the laws and decisions themselves, but includes and is knit together by the reasoning supporting the decisions and the values underlying the laws. As Gerald Postema has much more eloquently expressed it: "Law is a framework of practical reasoning that anchors public justification of decisions and actions to past communal decisions and actions."6Judicial opinions in a common law system should make clear how and why the substantive holding or the application of the law in a given case fits into the corpus. …