Document Type

Article

Publication Date

2019

Publication Citation

168 University of Pennsylvania Law Review Online 35 (2019)

Abstract

In Reconsidering Judicial Independence, Professor Stephen Burbank revisits the nature of the relationship between judicial independence and judicial accountability—a relationship that he has elucidated over the course of an illustrious career. As Burbank emphasizes, the continuing success of this dichotomy depends on preserving a balance between its halves. But forces generations in the making have led to a new assault on the independence of the judiciary in the age of Trump, which has put the future of the independence–accountability balance in doubt. The age-old rule-of-law paradigm, which posits that independent judges put aside their personal biases and follow the law, has been debunked by data showing that judges are subject to ideological and other influences, undermining this traditional justification for judicial independence. To avert the erosion and collapse of judicial independence, we must defend it with recourse to a different paradigm—a legal-culture paradigm. The legal-culture paradigm appreciates that independent judges are acculturated to apply and uphold the law as best they can, but also recognizes that judges have discretion that is subject to extralegal influences—influences that better accountability can manage.

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