Result-Oriented Judging: A Process-Oriented Definition

by John P. Messina


"Activist" and "result-oriented" are popular terms for critiquing federal judges.  These terms and their cognates are usually applied to appellate judges,[1] but occasionally, they are used to describe the behavior of trial court judges as well. [2]

Over the years these terms have acquired "a number of disparate, even contradictory" meanings.[3]  Some complain that these terms are used subjectively to describe judges who "render decisions that run counter to one’s political beliefs."[4] This discussion of result-oriented judging proceeds on the following premises:

First: The American legal system is epistemologically sound—that is, it has reliable factfinding procedures that are capable of producing accurate legal judgments. R. Posner, Frontiers of Legal Theory 319-35 (Harvard Univ. Press 2001). Those procedures, however, can be manipulated by judges to produce judgments that would not otherwise be produced. This manipulation is the essence of result-oriented judging.

Second: Trial court judges have innumerably more opportunities to manipulate the outcomes of cases than do appellate judges. Nevertheless, the legal literature focuses almost exclusively on result-oriented adjudications at the appellate level. As a result, analytic tools for critiquing result-oriented behavior in the trial courts are not well developed.

Third: Result-oriented outcomes corrode public confidence in the legal system and promote cynicism at the bar. Creating a realistic "threat of searing professional criticism" for judges who manipulate the outcomes of cases may be the only "effective check on [such] irresponsible judicial actions."[5]

Fourth: The particular outcome sought by a result-oriented judge may be politically motivated, but the techniques for achieving such an outcome are available to any judge, no matter where he or she sits on the political spectrum. Consequently, the vocabulary of a constructive judicial critic should be process-oriented, not politically judgmental.

Section I of this essay proposes process-oriented definitions of "activist," "result-oriented," and related terms. These definitions are based on the principles and norms discussed below in §§II through IV.

I. Process-oriented definitions.

Activist (and its cognates) should be reserved for describing trial judges, not appellate judges. This reservation is suggested by the following factors:

"Activist" should be a neutral term describing a judge who opts to exercise one or more of the inquisitorial powers delegated to trial judges by the Federal Rules of Evidence.

Result-oriented conduct should likewise be reserved to describe the conduct of trial judges only. The term should refer to:

Judicial intuition should refer to the method by which a trial judge reaches a legal or factual conclusion without using the "rational processes" that are the cornerstone of the American legal system, namely, notice and opportunity for an adversarial hearing. See The American Heritage Dictionary of the English Language 947 (3d ed.., 1992) (defining intuition as "[t]he act or faculty of knowing or sensing something without the use of rational processes; immediate cognition."[6]

Result-oriented decision should refer to an oral or written ruling by a judge at any level wherein the judge, for the sake of promoting acceptance of the decision by its intended audience, intentionally omits to disclose either (a) the true grounds of decision, or (b) material facts or disputed issues relevant to a neutral, objective, and non-partisan understanding of the underlying controversy. See R. Posner, The Federal Courts: Challenge and Reform 311-12 (Harvard Univ. Press1996). 

Under this definition, an adjudication that rests on undisclosed judicial intuition is result-oriented.

II. The official record, "putting it on the record," and published vs. unpublished decisions.

A. The difference between a trial judge’s and an appellate judge’s relationship to the record.

The core component of any federal case or controversy is the official record. A trial judge’s relationship to the official record is fundamentally different from an appellate judge’s.  The vocabulary of a constructive judicial critic should take this difference into account.

A trial judge’s dynamic relationship to the record. The official record consists of the papers filed by the parties; the transcripts and minutes of the proceedings in court or in chambers; and the orders and opinions issued by the trial judge. Fed. R. Civ. P. 79(a).  The record is the end-product of the judicial function at the trial court level.

A trial judge has a dynamic relationship to the record—the judge helps to create and shape it as he or she rules on pleadings and motions. Put another way, a trial court record documents a series of ordered interactions between the trial judge and (a) the lawyers who file papers and present arguments in court, and (b) the parties and the witnesses who testify in court.

Analyzing whether a trial judge is result-oriented (i.e., intending to affect the substance of the final judgment) is largely a behavior-oriented exercise—it scrutinizes these interactions. 

An appellate judge’s static relationship to the record. An appellate judge has a static relationship to the record. Appellate judges receive the record only after it is completed—after entry of final judgment.  They play no role in creating any part of the record, nor do they have any right to add to, or subtract from, the record. 

This static relationship is dictated by the judicial function at the appellate level, which is to decide whether the trial court’s final judgment is supported by the facts in the record, and also whether the judgment is consistent with applicable law.  The end-product of the appellate function is a written opinion that either affirms or reverses the final judgment or sends the case back to the trial court for further proceedings. 

Evaluating whether an appellate judge has made a result-oriented decision (as defined above in §I) is purely a content-oriented exercise.  The exercise compares the information in the judge’s opinion to the information in the record and weighs whether the opinion gives a fair and accurate account of the record.

B. The first principle of principled adjudication in the trial court: publicly declaring the grounds of a decision, or "putting it on the record."

Every federal litigant has an absolute right to appeal from any final decision by the district court and from any interlocutory decision that is so immediate and irreparable in its effect that it is the equivalent of a final decision.  28 U.S.C. §§1291, 1292(a).

Effective appellate review requires that the true factual and legal grounds of any trial court decision be spread on the record; if it isn’t in the record, it can’t be reviewed. International Business Machines Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). Thus, if an adjudication rests on a factual or legal conclusion derived from judicial intuition, that intuitive conclusion should be recited on the record.

C. The different audiences for published and unpublished opinions, and the implications of that difference.

When a trial or appellate judge writes an opinion that will not be published, the opinion is for the edification of the parties and their lawyers and no one else. Since this limited audience is already well-versed in the facts and issues in dispute, the judge can "write a truncated set of facts and employ a shorthand analysis of the parties’ arguments."[7]  

When an unpublished opinion is result-oriented, the losing party may be powerless to change the outcome, but his knowledge of the case makes it unlikely that he will be deceived by the opinion’s result-oriented techniques.

When a trial or appellate judge opts to publish an opinion, he or she is reaching beyond the parties and speaking to the bar, the bench, and the academy.[8] With rare exceptions, this broader audience will have no prior knowledge of the facts and issues in dispute. Consequently, the published opinion has the burden of "elucidate[ing] every important aspect of the case."[9]

Readers in the broader audience for a published opinion will not have ready access to the underlying record,[10] so their evaluation of the opinion, and their willingness to accept it as authoritative, will largely depend on what they learn from the information disclosed within the opinion’s four corners.

III.Axiomatic norms for federal trial judges.

Any critique of judicial conduct presumes a set of norms directing how judges should behave.  A first norm for the behavior of federal trial judges is: A trial judge should carry out his or her role as an arbiter in a neutral, objective, and non-partisan way that furthers the truth-seeking purposes of a trial.[11]

A fair application of this norm would take into account the following factors:

A. A federal trial judge’s limited inquisitorial powers.

There are two basic models for dispute resolution—the adversarial, and the inquisitorial. One commentator succinctly described the basic differences between the models this way:

In an inquisitorial system, the judge defines the issues, investigates the facts, decides which witnesses to call and conducts all the questioning.  In sharp contrast, the judge in the adversarial system is an objective and detached magistrate whose role is to resolve conflicts between the opposing parties.[12]

Under the classical model of the adversary system, the "[p]arties, rather than officers of the state, control[…] case preparation.  The fact-finder, whether jury or judge, receive[s] evidence by listening relatively passively to the evidence chosen and the witnesses rehearsed by the parties."[13]

The American system of adjudication is based on the adversarial model, but over time the common law has grafted some inquisitorial powers onto that model:

Within the limits of soundly exercised discretion, judges control the mode and order of presentation at trial, ask questions of the witnesses called by the parties, call witnesses themselves, exclude inflammatory or prejudicial evidence, sum up the evidence, and even comment upon its weight.[14]

A judge is not required to exercise these inquisitorial powers, but if the judge opts to do so, he or she must exercise them in a neutral, objective, and non-partisan way.[15] 

B. The three sets of truths that are the objectives of litigation.

"Truth" is a term with a range of meanings, from the mundane to the metaphysical.  Spelled with a capital T, "Truth" refers to "[t]hat which (is considered to be the supreme reality and to have the ultimate meaning and value of existence.)"[16]  In the day-to-day world, "truth," spelled with a small t, means "[c]onformity to fact or actuality," or a "statement proven to be or accepted as true."[17]

Most everyone agrees that searching for "the truth" (spelled with a small t) is the purpose of a federal trial (and of pretrial discovery).[18]  The obvious follow-up question is—truth about what?  Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1084 (1975).

Damaska answers his own question using an imaginary manslaughter charge arising out of reckless driving as an illustration.  He identifies three sets of "truths" that a decision-maker must determine at a trial on the manslaughter charge:

  1. Propositions regarding "external facts," such as the speed of a car or the condition of a road.  These facts can be determined from sensory experience and are relatively objective facts.
  2. Propositions regarding "internal facts," such as aspects of the defendant’s knowledge or volition, to the extent these are important for application of the relevant legal standard.  Internal facts are more subjective; they depend upon inferences.
  3. Evaluative findings, such as whether the conduct that has been found to have occurred falls within a relevant legal definition such as gross negligence. 

123 U. Pa. L. Rev. at 1085-86.

Referring to the three sets of "truths" identified by Damaska, Professor Saltzburg sums up the purpose of a trial this way:

Litigation in our legal system is not simply a search for truth, but rather is a search, at a reasonable cost using acceptable procedures, for accurate answers to questions that the legal system permits the parties to bring to the trial court.

Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64 Va. L. Rev. 1, 12 (1978).

C. The rules requiring truth-telling from parties, lawyers and witnesses.

Our legal system’s commitment to the search for truth is reflected in rules that penalize parties, lawyers, or witnesses who would obstruct that search.  Thus, the civil rules impose sanctions on lawyers or litigants who file false pleadings (FRCP 11), or who obstruct pretrial discovery (FRCP 37).  The criminal code stigmatizes false testimony as a felony punishable by imprisonment and a fine (18 U.S.C. §§1621, 1623).

The commitment is also reflected in the Rules of Professional Conduct, which require that a lawyer must be disciplined if he speaks untruthfully in the course of a legal proceeding, even if he happens to be President of the United States.[19]

IV. Result-oriented judging at the appellate level.

Keenan Kmiec has surveyed 57 years of legal literature to document the varying meanings of "judicial activism" and its cognates.  He has identified five species of "judicial activism," one of which is "result-oriented judging."  His survey of the literature indicates that result-oriented judging is the only one of the five species that has no defenders. 

A. "Result-oriented" judging as a species of "judicial activism."

Kmiec’s survey begins in January 1947, the date his research pinpoints as the first recorded use of the term "judicial activism."  It came in a Fortune magazine article profiling the Supreme Court Justices.  The author was Arthur Schlesinger, Jr.—a historian, not a lawyer.  Kmiec at 1445-50. 

Schlesinger divided the Court into three distinct groups.  Justices Black, Douglas, Murphy, and Rutledge were identified as the "Judicial Activists."  This wing of the Court was "concerned with the employment of judicial power for their own conception of the public good." Kmiec at 1447.

Justices Frankfurter, Jackson and Burton were the "Champions of Self Restraint."  They were more concerned "with expanding the range of allowable judgment for the legislatures, even if it means upholding conclusions they privately condemn."  Kmiec at 1446. In the middle were Chief Justice Vinson and Justice Reed.  Id.  After describing the different factions on the Court—but without defining "judicial activism" with any great precision—Schlesinger sided with the Frankfurter-Jackson wing. Id. at 1449-50.

Kmiec then surveyed 58 years of commentary and judicial decisions that used the term "judicial activist" or its cognates.  He found that in its early years of usage the term "sometimes had a positive connotation, much more akin to ‘civil rights activist’ than ‘judge misusing authority.’" Id. at 1451.  By the mid-1950s, however, "the term had taken on a generally negative connotation, even if its specific meaning was hard to pin down."  Id.

Since then, "judicial activism" has become a commonplace[20] with "a number of disparate, even contradictory" meanings.  Id. at 1443.  Kmiec has identified five core meanings for "judicial activism" as that term is applied to judicial conduct at the appellate level:

  1. Invalidation of the arguably constitutional actions of other branches (Id. at 1463-66).
  2. Failure to adhere to precedent (Id. at 1466-71). 
  3. Judicial "legislation" (Id. at 1471-73.)
  4. Departures from accepted interpretive methodology (Id. at 1473-75).
  5. Result-oriented judging (Id. at 1475-76).

According to Kmiec, judicial conduct that fits within core meanings nos. 1 through 4 has a fair share of defenders.[21]  He found no one, however, willing to defend result-oriented judging.  See 92 Cal. L. Rev. at 1475-76. 

B. The element of scienter that distinguishes a result-oriented decision from the other four species of judicial activism.

Kmiec argues (at 1475-76) that result-oriented judging is a "species of judicial activism [that] differs in kind from the previous four because it has a scienter element."  He defines a result-oriented decision as one where "(a) the judge has an ulterior motive for making the ruling; and (b) the decision departs from some ‘baseline’ of correctness." Id. at 1476 (emphasis added). He notes, however, "[t[here is rarely smoking gun evidence of an ulterior motive." Id. at 1476.

To say that a result-oriented judge acts with scienter is a dry way of declaring that the judge has deceived[22] the intended audience—the judge has deliberately withheld information from the opinion that, if it were included, would "invite[e] strong condemnation" of the opinion by members of the bar, the bench, and the academy. The Federal Courts: Challenge and Reform, supra note 4, at 311.

Kmiec’s definition of "result-oriented judging" is based on the definition of "judicial activism" offered by Judge Diamuid O’Scannlain of the Ninth Circuit:

Judicial activism is not always easily detected, because the critical elements of judicial activism either are subjective or defy clear and concrete definition. For instance, a critical consideration is the state of mind of the allegedly activist judge.  Judicial activism means not the mere failure to defer to political branches or to vindicate norms of predictability and uniformity; it means only the failure to do so in order to advance another, unofficial objective.

On Judicial Activism, Open Spaces Quarterly, vol. 4, No. 1[23] (emphasis added).

O’Scannlain’s reference to a result-oriented decision’s "unofficial objective" echoes Posner’s definition of a result-oriented decision as one that omits to declare on the record the true grounds on which it rests. The Federal Courts: Challenge and Reform 311-12.

/s/ John P. Messina

[1] See, e.g., Kmiec, The Origins and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, passim (2004) [hereafter cited as "Kmiec"].

[2]Pinard, Limitations on Judicial Activism in Criminal Trials, 33 Conn. L. Rev. 243, 247 & n.14 (2000) [hereafter cited as “Pinard”]. See also Resnik, Managerial Judges, 96 Harv. L. Rev. 376, 380 (1982); Ogletree, Judicial Activism or Judicial Necessity: The D.C. District Court’s Criminal Justice Legacy, 90 Geo. L. J. 685, passim (2002).

[3] Kmiec, supra note 1, at 1443.

[4] Pinard, supra note 2, at 248. See also R. Posner, The Federal Courts: Challenge and Reform 354 (Harvard Univ. Press 1996) ("[T]he rhetoric of judicial abuse is in many cases opportunistic:  the first to cry ‘activist’ is usually an activist: the unprincipled cries ‘unprincipled.’")

[5] Id. at 349.

[6] See also Reynolds v. Beneficial National Bank, 288 F.3d 277, 283 (7th Cir. 2002) (holding that judicial intuition is no substitute "for the evidence and careful analysis" that the adjudication of a complex case requires.)

[7] Greene, The Federal Courts of Appeals, Unpublished Decisions, and the "No-Citation Rule," 81 Ind. L.J. 1503, 1507 (2006), citing Gerken, A Librarian’s Guide to Unpublished Opinions, 96 Law Libr. J. 475, 477 (2004).

[8] R. Posner, The Federal Courts: Challenge and Reform 350 (Harvard Univ. Press 1996).

[9] 81 Ind. L.J. at 1507

[10] R. Posner, Frontiers of Legal Theory 323 (Harvard University Press 2001) (observing that the record of a federal case is "not readily available to people outside the federal judiciary").

[11] For a more concrete expression of this norm, see Judge Friendly’s "job description" for district judges: "disposing of cases by trial or settlement with fairness and with the optimum blend of prompt decision and right result; they also have the responsibility of demonstrating the quality of federal justice to ordinary citizens—parties, witnesses, and jurors."  Friendly, The "Law of the Circuit" and All That, 46 St. John’s L. Rev. 406, 407 (1972).

[12] Pinard, supra note 2, at 251 (footnotes omitted).

[13] Resnick, Managerial Judges, 96 Harv. L. Rev. 374, 381 (1982).

[14] G. Lilly, An Introduction to the Law of Evidence 9 (2d ed. 1987). These common law powers have been codified in the Federal Rules.  See Fed. R. Evid. 104 (preliminary questions), 403 (exclusion of relevant evidence on various grounds), 611 (mode and order of interrogation) (calling and interrogation of witnesses by the court), and 615 (exclusion of witnesses).

[15] Pinard, supra note 2, at 259.

[16] American Heritage Dictionary of the English Language (4th ed. 2000) at

[17] Id.

[18] Frankel, The Search for Truth: An Umpireal View, 1234 U. Pa. L. Rev. 1031, 1033 (1975).  See also Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555, 596 (1980) (Brennan, J., concurring) (observing that the American system of litigation “aims at true and accurate factfinding”).

[19] Neal v. Clinton, 2001 WL 34355768 at *1 (Ark. Cir. 19 Jan. 2001) (suspending President Clinton’s law license for five years and imposing a $25,000 fine for giving untruthful testimony during pretrial discovery in Jones v. Clinton.)  See also Jones v. Clinton, 36 F. Supp. 2d 1118 and 57 F. Supp. 2d 719 (E. D. Ark. 1999) (citing President Clinton for contempt of court for giving untruthful testimony).

[20] In the 14-year period from January 1, 1990 through December 31, 2003, at least 5,632 articles in law reviews and journals used the term “judicial activist” or its cognates.  92 Cal. L. Rev. at 1442nn.5&6.

[21] E.g., Kmiec, supra note 1, at 1465-66 (defending the necessity to rule on “close or debatable cases’’ challenging the constitutionality of legislative or executive action); id. at 1467 (defending disregard of horizontal precedent); id. at 1473 (defending some forms of judicial legislation); id. at 1473-76 passim (discussing how “divergences of opinion over what constitutes an appropriate interpretative tool make it difficult to distinguish principled but unorthodox methodologies from ‘activist’ interpretation.”)

[22] Deceit is any message intended to mislead others into believing what we ourselves do not believe. S. Bok, Lying: Moral Choice in Public and Private Life 13 (Pantheon Books 1978).

[23] Judge O’Scannlain’s essay is available online at (accessed June 8, 2007).