In 2006, former Chief Judge of the U.S. Court of Appeals for the Second Circuit, Dennis Jacobs delivered a lecture at Fordham Law School titled “The Secret Life of Judges.” In his lecture, Judge Jacobs described “the judicial mentality,” as “a habit of mind that . . . amounts to a serious and secret bias.”
This lecture is about bias, the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them . . . .
He noted that judges have an internal bias for attorney-based procedures and solutions and believe that the adversarial system yields the best results. But Judge Jacobs acknowledged that judicial bias in favor of legal complexity often fails to consider the transaction costs for litigants in the “ceaseless turning of the legal machine.”
Considering how many of us [judges] conscientiously think hard about the economic consequences of the outcomes we adopt, it seems strange that our cases reflect an almost complete disregard and ignorance of the costs, uncertainties, and delays inflicted by the judicial process itself.
Admitting that “judges tend to assume that the adversary process assures a fair fight and a just outcome,” he noted that “adversariness” does not assure fairness. He opined that a problem might be the lawyers’ (including judges) lack of respect for non-lawyers.
In the end, Judge Jacob questioned how to correct judicial bias and raise the legal profession, which he described as a monopoly that is self-regulating. He posed the following response:
Judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust . . .
This is one judge’s opinion. Would other judges agree?