Scholarly and professional perceptions of the role of the judiciary, and hence of the responsibility of judges, have undergone radical change since the early 1900's, and judicial opinions have both reflected and been influenced by those perceptions. At the turn of the century, conceptual abstraction and logical consistency held sway. Formalism, however, gave way to Legal Realism in the 1920's and 30's. Of the many important contributions that Realism made to the way we think about law, the most fundamental was its recognition that formal rules do not mechanically govern the resolution of legal disputes. Under this conception, the dominant factor influencing the outcome of litigation is the personality and psychology of the individual judge. To the practicing attorney, this meant that the key to success in litigation lay in "psyching out" the judge and designing trial tactics to elicit the desired psychological response from the bench. From the point of view of the judge, however, skepticism about the relevance of legal standards was not much help. The judge who faced a difficult choice in a close case could only conclude that his or her personal conception of the underlying values must be the guide. In working toward an articulation of criteria for judging the legitimacy of legal reasoning, we should be able to find guidance in the primary data: judicial opinions. A recent decision of the Washington State Supreme Court provides fertile ground for this approach.
Maximilian J.B. Welker, Jr., Judging the Judges: A Case Study in Judicial Responsibility, 5 SEATTLE U. L. REV. 47 (1981).