1 - The Standard Model of Judging

Summary

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.