Guido Calabresi Advocates for INDEPENDENCE ON THE BENCH

“Penn was the school I came closest to teaching at other than Yale, which I chose to make my home,” began the Honorable
Guido Calabresi, the famed and beloved former dean of Yale Law School. If only for an evening, the University of Pennsylvania
Law School opened its doors to make the judge feel at home for his delivery of the annual Owen B. Roberts Lecture.

The subject of his talk was “The Current, Subtle – and Not So Subtle – Rejection of an Independent Judiciary.” Judge Calabresi, who sits on the U.S. Court of Appeals for the 2 nd Circuit in New Haven, said, “I want to talk about ways we have seen courts move away from being independent decision makers.” He stated that he was inspired to speak on this subject by the lecture’s namesake, Owen B. Roberts C’1895, L’1898 (U.S. Supreme Court Justice, Dean of Penn Law School from 1948 to 1952), who remains known as a dissenting voice in the Korematsu case (U.S. Supreme Court, 1944) and as the “switch in time that saved nine.”

Throughout his talk, Judge Calabresi built an argument to demonstrate “ways we have seen courts move away from being independent decision-makers” to institutions dependent on the immediate needs of society today. This has happened incrementally over time. With regard to sentencing, there was a desire to have greater equality, so sentencing guidelines were created. He questioned whether the goals have been achieved, or have judges turned over the power for deciding sentencing to prosecutors?

The second point he made concerned the influence of expert witnesses. “As our society becomes more complicated, experts become more important,” he stated. Conceding that it is sensible for judges to defer to experts, he pointed out that in deferring to their opinions, a judge may be turning over the power to make the decision to someone who is dependent on the outcome of the case; who may have an interest in the outcome of the case.