In lieu of an abstract, here is a brief excerpt of the content:

Reviewed by:
  • All Judges Are Political Except When They Are Not: Acceptable Hypocrisies and the Rule of Law
  • John Q. Stilwell (bio)
Keith Bybee , All Judges Are Political Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford, CA: Stanford University Press, 2010), 192 pp.

In this brief monograph, Bybee joins the long line of critics complaining of incivility at the bar of justice. Simultaneously, he joins the ranks of those who would engage in "transformative" mediation and "collaborative" litigation, thus indulging in nostalgia for a state of affairs that has never existed in the Anglo-Saxon tradition (nor in its receptor, American jurisprudence). Opening with a survey of how state judges buy their seats with bloated campaign war chests, thus emulating their legislative counterparts, Bybee swiftly shifts the conversation to a consideration of how judges behave rather than of the way they are selected. He finds that, while public perceptions vary widely, those who get their quota of justice in court rarely complain of a biased judge, no matter how selected. He suggests that legal fictions and the rhetoric of "courtesy" hide the partiality that may sway judicial actions during trial or on appeal. Having floated that idea, he goes full throttle into an argument that the law is courtesy's equivalent and that the Rule of Law is easily translated into the rules of etiquette (thereby accounting for the enduring popularity of advice books throughout the Western canon of ethics and "civil" procedure, from those of Homer, Socrates, and Aristotle to that of the Harvard Project on Negotiation). Bybee concludes that this view of the judicial process enables litigants to maintain their skepticism of the corrosive political process in which the selection of judges is implicated, while at the same time to accept outcomes of cases as based upon the impartial application of principle—though only when appropriately encased in the rhetorical structures of, of all things, good manners. [End Page 369]

John Q. Stilwell

John Q. Stilwell, a lawyer and mediator of complex business disputes, teaches moral philosophy and the history of ideas at the University of Texas, Dallas. He is presently completing a monograph, Just Conversation: Justice under America's Post-World War II Social Contract.

...

pdf

Share