ABSTRACT
Richard Hyland’s ‘Common Law Judging and the Great Tradition’ offers an admirably erudite reconstruction of the common law’s central commitments. Hyland is right that the common law is not a system of rules mechanically applied and that good adjudication ultimately requires good judges. But accepting that judges have broad, ineliminable discretion is different from concluding – as Hyland tends to – that there is no vantage point from which judicial decisions can be evaluated and criticized. This essay argues that Hyland’s account of the common law is in tension with the rule of law; that the common law cannot rely as easily as he suggests on the claim that it tracks social norms and values; and that we should be concerned about an excessive and uncritical admiration of individual judges in the American common law. Still, Hyland is right that the openness and adaptability of the common law are both central to it and valuable. But this should not lead us to a quietism that avoids rational scrutiny of how judges exercise their power.
Jiménez, Felipe, Beware Judge & Co (July 29, 2026). Forthcoming, New England Law Review.
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