Routes to Better Judging -workshop Draft

A strikingly small fraction of the scholarly literature on judging and law asks how well judges perform their work and how their performance might be improved. The aim of this essay is to explore the prospects for an ambitious normative, empirical, and prescriptive project that would set out criteria for good judging, evaluate actual judicial performance against these criteria, and suggest reforms to produce higher or steadier levels of performance. As of now, although there are scattered writings (discussed below) that would seem to belong to such a project, there is hardly any evidence that a project like this has captured the attention of the field as a whole. It's true that we write a lot about how judges decide cases, which decisions we think are wise or foolish, and even what methods we think judges should use to decide cases. But these are not the same thing. Why hasn't the problem of judicial performance attracted more sustained attention from researchers? It does not seem plausible that people who spend their lives studying judges are uninterested in how well judges do their work. Rather, I suspect that the difficulties involved in such project-from laying out decisional norms capable of wide acceptance to familiarizing ourselves with huge chunks of literatures in which we lack expertise-appear insurmountable. I am not prepared to say with certainty that the obstacles can be overcome, and I readily concede that the job is too big for one study, scholar, or small team of scholars, if only because the potentially relevant literatures from psychology, law, and political science are enormous. And yet I am inclined to believe that a community of scholars working steadily on the project and content to divide the