Judge Henry Friendly and the Craft of Judging
How judges decide cases is a subject on which Henry Friendly sometimes touched in his writings. An example, published in this school’s law journal, was his book review of Karl Llewellyn’s great work on appellate judging; but Friendly seemed mildly amused at Llewellyn’s complex scheme and unique vocabulary. Anyway, Judge Friendly’s own bent was toward history, not jurisprudence, and after three decades of arguing cases and advising clients, Friendly’s craftsmanship was in his bones.
Yet interest in the subject of how judges decide cases continues to flourish. Recently, scholars have offered differing views on whether and to what extent federal circuit judges are, or should be, influenced by precedent, by statutory language, by the slant of the president who appointed them, by the political affiliation of their own colleagues, by the size of their circuits, by the presence or absence of dissents, by the practical consequences of their decisions, and by their own social goals and temperament. Judge Friendly’s own decisions, along with the work of a handful of other judges, are the gold standard in American appellate judging. So it is worth pondering what Friendly’s body of court work can teach us about him and about the enterprise of deciding appeals.
Appellate judges have the peculiar burden of seeking to do three different things at the same time: first, to determine and respect “the law,” this vast collection of constitutional provisions, statutes, precedents, canons, and other paraphernalia; second, to reform doctrine, if permissible and when appropriate, in light of new insights, experience, and social imperatives; and finally, to get the specific quarrel settled in a just and practical way. Naturally a potential exists for conflict among these aims—the difficulty of riding several horses at the same time—but let us defer that problem for the moment.
Along with other strengths, Friendly brought to the tasks of law finding, law improvement, and sound outcomes two qualities in which perhaps no American judge has surpassed him: a skill in wielding the legal tools and a quality of judgment honed by years of private law practice and service as general counsel to a great corporation. His education and professional background have been considered at length elsewhere. Here, taking as a surrogate a few examples from cases he decided during a single Second Circuit term, let us explore how he went about deciding cases and how his experience informed this exploration.
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