The perennial debate over striking the right balance between judicial independence and judicial accountability largely misses the mark. The tension between these concepts arises only in the structural sense of the terms, i.e. the conflict lies in the structural approaches traditionally taken to protect independence and to enforce accountability. In actuality, our primary concern should be the judge's own sense of independence and her internal sense of accountability. These more subjective concepts--which may be termed “judicial courage” (for the judge who is willing to act independently) and “judicial integrity” (for the judge who is willing to hold herself accountable)--do not conflict with each other and therefore need not be balanced. The structural protections (to insulate judges from outside influence) and the accountability mechanisms (to police judicial misconduct) are still important, but these structures should be considered in terms of their impact on judges' exercise of courage and integrity. Given cultural and personal differences in judges, however, the optimal structural prescription is highly variable. This Article demonstrates how the proper balance depends on the judicial culture and the judges already in the system, illustrating through a graphical analysis how to craft a system-specific approach to such policy questions. The analysis also yields a caution that any attempt to impose a one-size-fits-all solution for protecting independence while promoting accountability may well do more harm than good.
Reframing the Independence v. Accountability Debate: Defining Judicial Structure in Light of Judges' Courage and Integrity,
57 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol57/iss1/3