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

Sarah M. R. Cravens, University of Akron School of Law

Abstract

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.