Chad M. Oldfather (Marquette University - Law School) has posted Aesthetic Judging on SSRN. Here is the abstract:
This article offers a conceptualization of judges in the legal system as analogous to their namesakes in sports such as gymnastics and figure skating. It is, to a degree, a counter-intuitive suggestion. Figure-skating judges, after all, do not enjoy a reputation for being unbiased and scandal-free. Indeed, figure skating and aesthetic sports like it are often pejoratively referred to as “subjectively” judged. It is a seemingly curious model for a legal system that strives to avoid all these things.
There is no question that the more common analogy, which invokes the metaphor of the judge as an umpire, provides the judiciary with a more comforting public face. The value of thinking of judges in law as analogous to judges in aesthetic sport lies not in its public relations value, but rather in its ability to focus attention on aspects of the judiciary that the umpire metaphor obscures. Judges in both contexts draw on ineffable criteria that cannot be fully captured in words. These are the sorts of things that form the basis of characteristics, such as wisdom, which have taken a back seat in our metrics-obsessed era. To be sure, both types of judges thus stand open to suggestions that improper criteria – bias, politics, and the like – are the true drivers of their decisions. Both systems must therefore rely on institutional and procedural mechanisms, including a long process of acculturation in shared norms, together with a cluster of procedural and institutional features, to minimize the influence of improper considerations and to provide litigants, participants, and the public with an assurance that decisions are the products of appropriate considerations. Increased mindfulness of this dynamic takes on greater significance in a world, such as ours, marked not only by a fetish for the quantifiable, but also by broad and deep disagreement over core aspects of our culture.
Very interesting and recommended!