McGill Law Journal Revue de droit de McGill
SEDUCTION OF A LAW PROFESSOR
Review of Allan C Hutchinson, Laughing at the Gods: Great Judges
and How They Made the Common Law (Cambridge: Cambridge
University Press, 2012), pp 328. ISBN 978-1-107-01726-9
Shauna Van Praagh *
Introduction
Why do judges receive so much attentionwhether in law classrooms,
in biographical works, or even in our collective psyche? They are not su-
perhuman; they are not the only or even the principal creators of the rules
that structure our lives; and they do not explicitly or freely choose the is-
sues about which they have something to say. Indeed, the people whose
stories lead them to court are crucial to the work of judges, as are the ju-
rists who frame those stories and articulate the arguments that connect
them to sources in law. And yet, as one of my students recently asserted
in class, law professors in particular appear to be seduced by judges!
That seduction is at the very core of Allan Hutchinsons book, Laughing at
the Gods: Great Judges and How They Made the Common Lawa book
that showcases a deep fascination with judges and the ways in which they
affect law and society.1
Hutchinsons book reflects a double-pronged preoccupation: first, a
preoccupation with choosing individuals who satisfy the criteria
Hutchinson offers for being included on a shortlist of great judges, and
second, a preoccupation with musing as to the contributions of these se-
lected few to the creation and continuity of the common law. This choos-
ing and musing project takes very seriously the task of selecting great
judges and justifying that selection. At the same time, it promises ave-
nues for ongoing reflection by law students, lawyers, and judges on what
it means to participate actively in the content, form, and development of
* Associate Professor, Faculty of Law and Institute of Comparative Law, McGill Univer-
sity. A team research project, entitled Gouvernance pdagogique dans lenseignement
du droit au Canada, headed by Pierre Noreau and funded by the Social Sciences and
Humanities Research Council of Canada, provided support for the teaching, research,
and writing that inform this essay and for the much-appreciated research assistance of
McGill law student Miriam Clouthier.
Shauna Van Praagh 2013
Citation: (2013) 59:1 McGill LJ 211 Rfrence : (2013) 59 : 1 RD McGill 211
1 Allan C Hutchinson, Laughing at the Gods: Great Judges and How They Made the
Common Law (Cambridge: Cambridge University Press, 2012).
212 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
the common law. The book should provoke critical engagement with the
notion of greatness and with the power of judicial voice and actionand
this review essay underscores the importance of asking hard questions
along this vein. But, for most readers, the tangible value of the book will
resonate through their enjoyment of finding favourite and familiar faces
and stories in the books pages, and of imagining responses to
Hutchinsons wide-ranging, immensely readable, and sometimes provoca-
tive remarks.
As a long-time law professor and scholar, Hutchinson does appear se-
ducedby the very idea of greatness, by the judges potential to effect
change, and by the personal stories and characters of the individuals who
make up his top eight list of great judges. But he is not alone. In re-
sponding to his invitation to laugh at the gods, I explore the seriousness
with which judges are treated, by Hutchinson himself and by law stu-
dents, jurists, and law teachers more generally. I do so within a frame-
work structured by three exercises undertaken by law students in the Ad-
vanced Common Law Obligations course I teach at McGill.2 In a course
dedicated to examining the form and method of the common law, inter-
twined with selected substantive private law issues, judges receive careful
attention. As illustrated by the exercises, they are named as principal ac-
tors in a legal tradition, expected to fulfill the requirements of a compli-
cated job description, and subject to restraint even as they take risks. The
students, like the readers of Hutchinsons book, learn that it is crucial to
pay attention to judges individual voices, to understand and appreciate
the ways in which judges justify their decisions, and, finally, to enjoy
themselves as they imagine conversations among judges across cases,
courts, and contexts.3
I. Exercise OneName Great Judges
The first session of Advanced Common Law Obligations is devoted to
a quiz focused on the key historical, structural, and methodological as-
pects of the common law. Among questions that touch on writs, law
French, the Inns of Court, and the case method as form of legal pedagogy,
is the following: Name three great judges who have contributed to the
development of the common law, making sure to include at least one from
England and one from the United States. The message is that naming
judges, discerning their greatness, and acknowledging the rich backdrop
2 Special thanks for their ideas and enthusiasm go to law students in my Advanced
Common Law Obligations classes of Fall 2011 and Fall 2012.
3 See Karen Crawley & Shauna Van Praagh, Academic Concerns: Caring about Con-
versation in Canadian Common Law (2011) 34:2 Dal LJ 405.
SEDUCTION OF LAW PROFESSOR
213
offered by both the United Kingdom and the United States for assessing
their contributions are all projects central to understanding and partici-
pating in the common law. The notion of the great judge is uniquely
bound up in the nature, content, and form of the common law tradition.
The title of Allan Hutchinsons book, Laughing at the Gods, plays with
the notion of tempting the laughter of the godsresponsible, according
to Francis Bacon, for the ruin of anyone who undertakes to set himself
up as a judge of Truth and Knowledge.4 The subtitle of the book, Great
Judges and How They Made the Common Law, suggestsas does the ex-
ercise of naming great judgesthat the role of judge is no laughing mat-
ter. Indeed, common law judges are treated as if they do and should de-
cide truth and knowledge. Rather than tempting the laughter of the
gods, great judges are perhaps more commonly compared to the gods
themselves. And, if we tend to confuse great judges and gods, then
Hutchinson suggests that we should explore why and how we do so. The
title alone signals the authors enjoyment in creating his book, introduces
a tone shaped by the intersection of true respect for greatness and critical,
sometimes even irreverent, humour, and situates the act of laughing at
the gods in the specific context of Anglo-American common law.
Who are the great judges of the common law according to
Hutchinson? How does he choose? As he points out in the introductory
chapter entitled In Search of Great Judges, the list will depend on the
list makers view of law itself. For Hutchinson, common law has an ex-
perimental, catch-as-catch-can, and anything-might-go sense about it,5
and so it is not surprising that, in his view, great judges are bold, creative,
and even transformative. But, even as he tries to tie the nature of the
common law to the notion of judicial greatness, he turns for true inspira-
tion to a list of individuals who he says are recognized as great people in
history: Mahatma Gandhi, Elizabeth I, Nelson Mandela, Golda Meir,
Martin Luther King Jr., and Albert Einstein. Their individual attitudes,
abilities, and visions reflect the courage and commitment that Hutchinson
identifies in his chosen eight.
From the start, Hutchinsons list of six great leaders seems more wide-
ranging than his collection of eight great judges: Lord Mansfield, John
Marshall, Oliver Wendell Holmes Jr., Lord Atkin, Lord Denning, Thur-
good Marshall, Bertha Wilson, and Albie Sachs. But this is not so surpris-
ing given the history, shape, and location of common law. Three of the
eight are English, three are American, and the remaining two come from
Canada and South Africa, respectivelyalthough Hutchinson could well
4 Quoted by Hutchinson, supra note 1 at 3.
5 Ibid at 9.
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have included an Australian to round out the principal members of the
common law family. The Canadian is a woman, whose contributions to
gender equality are singled out, and one member of the octet is African-
American, celebrated in particular for his impact on racial equality. One
of the judges makes his mark in the eighteenth century, another in the
early part of the nineteenth, and the others span the twentieth century
from beginning to end.
Hutchinson articulates his choice as based primarily on the insistence
of his eight judges on do[ing] things their own way.6 This should seem a
little strange given the necessary shaping function of the common law it-
self on these individuals and their decision-making. If, however, we follow
Hutchinsons view of judges as principal social actors with influence over
human interactions and the development of communities and states, then
it becomes clear that a willingness to question received wisdom in order to
pursue social justice is an essential part of greatness. At the same time,
Hutchinsons choice is clearly based on factors going beyond an elusive
standard of greatness. The historical and geographical parameters that
shape Hutchinsons selection of judges underscores the particular signifi-
cance of the past two hundred years of interaction between law and socie-
ty in the United Kingdom, the United States, and their common law rela-
tives.
There is nothing particularly surprising in the choice of these eight.
But neither should we be convinced that Hutchinsons choice is somehow
right or inevitable. Instead, it is what Hutchinson does with his eight
chapters, each dedicated to one of his great judges, that has to convince us
whether his book moves beyond a collection of biographical sketches to a
sustained discussion of participation, mechanisms of change, and the roles
and responsibilities of judges in the common law.
II. Exercise TwoJob Description: Common Law Judge
If we imagined posting a job opening for a common law judge, what
would we look for in the ideal candidate? When my students in Advanced
Common Law Obligations do this exercise, the job description includes el-
ements relevant to judging in general and also elements that capture the
positions common law specificity. Candidates for the job of common law
judge, according to the students, should be thick-skinned and far-sighted,
patient and even slightly pompous, courageous and conscientious, good
writers and careful thinkers. They should be able to reason by analogy,
show respect for tradition and precedent, exercise creativity and recognize
6 Ibid at 14.
SEDUCTION OF LAW PROFESSOR
215
social reality, andaccording to some of the studentsdisplay storytell-
ing or even poetic talents. It is not an easy job to fill.
The exercise of trying to articulate elements of a job description for the
position of common law judge provides the backdrop for evaluating
whether someone not only meets expectations but also excels in the role.
It pushes us to identify what is key to the role of the common law judge
and thus maps nicely onto the elements that connect Hutchinsons eight
central chapters. These eight judges have already had much written
about them, whether focused on their judgments, on their personal trajec-
tories, or on their influence on the development of law and their societies.
Hutchinsons contribution is to bring them together and to insist that the
intersection of personal character and professional responsibilityoffered
in eight variationscan produce greatness in meeting and exceeding the
job requirements.
The eight judgesfrom Lord Mansfield to Albie Sachsare each given
a thirty-page chapter. Thirty pages, of course, are not enough to provide
even a condensed judicial biography. Instead, each of Hutchinsons sub-
stantive chapters can be characterized as a sketch of, or cameo appear-
ance by, each judge, orto sustain the job description analogya curricu-
lum vitae and post-retirement report rolled into one. The challenges faced
by each individual judge, whether personal and family-related or time-
and context-specific, are described. Intimately connected to those chal-
lenges are the significant contributions made by each judge through ar-
ticulation of legal concepts, decision-making in cases, interpretation of
constitutions, and the development of the common law.
Hutchinson does not pretend to unearth anything new either at the
level of personal history or at the level of professional impact; that is, his
book is not the result of original primary source research but rather of the
reflections that come from a synthetic review of secondary sources on
these individual judges. For readers already familiar with some or all of
these characters, the freshness of the text emerges in the few pages of
each chapter where we can truly hear Hutchinsons voice and critical
commentary. For example, Lord Mansfields impacts on commercial law,
on the abolition of slavery, and on justice in and through the common law
are all described in detail and with appropriate admiration. But it is the
line [t]o be a Scotsman in eighteenth-century England was to court sus-
picion and often resentment7 that gives us insight into the resonance of
this judges life path with Hutchinsons own, as a Scots jurist qua vibrant
Canadian law professor. Lord Mansfield, we are told, set the bar high for
later great judgesand his story and example pave the way for those
7 Ibid at 50.
216 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
who span the late nineteenth to late twentieth centuries in Hutchinsons
collection.
Following in the second chapter comes Chief Justice John Marshall of
the United States Supreme Court, rightly noted for his leadership on judi-
cial review and constitutional interpretation. Hutchinson characterizes
him as that rare figure who blended principle and pragmatism as well as
subtlety and substance into a paradoxical but appealing jurisprudential
project that won over his peers and has withstood the test of time.8 This,
and the following chapter devoted to Oliver Wendell Holmes Jr., illus-
trates Hutchinsons interest in American history, politics, and legal insti-
tutions. He reminds us that anyone interested in the common law tradi-
tion cannot focus solely on its English origins, but must pay attention to
its development and to the principal players on this side of the Atlantic.
Holmes, for whom famously [t]he life of the law has not been logic: it has
been experience,9 insisted on the deep social grounding of both the struc-
ture and the substance of the common law. But Hutchinson calls Holmes
the laws Jekyll and Hyde10 and has to confront the difficulty of confer-
ring the label of greatness on a judge whose values and social philosophy
he clearly finds distasteful and even dangerous.
The contrast with Lord Atkinwho, in Hutchinsons view, is great be-
cause of his modesty and care for the common personis striking. Lord
Atkins chapter is subtitled An Ordinary Person, and here Hutchinson
provides a very different possibility for the path to greatness in common
law judging. Perhaps best known for turning to the Bible in order to ar-
ticulate the neighbour principle in the tort of negligence (The rule that
you are to love your neighbour becomes in law, you must not injure your
neighbour),11 Lord Atkin is celebrated by Hutchinson as a generous and
modest civil servant. It is not clear, however, that Lord Atkin lacked a
strong-willed sense of his influence on the direction of the law. Indeed, the
implied contrast of a humble Lord Atkin and a forceful Justice Holmes
may be exaggerated; both may have been well aware of the scope of their
role and ambitious in filling it.
The chapter devoted to Lord Denning confronts head-on the complex
coexistence in one person of innovation, self-righteousness, compelling
empathy, and objectionable conservatism. Hutchinson tellingly entitles
the chapter Tom Denning An English Gardener, referring to the judge
8 Ibid at 76.
9 Oliver Wendell Holmes, The Common Law (Cambridge, Mass: Harvard University
Press, 2009) at 3.
10 Hutchinson, supra note 1 at 82.
11 Donoghue v Stevenson, [1932] AC 562 at 580, [1932] All ER Rep 3.
SEDUCTION OF LAW PROFESSOR
217
in a deliberately familiar fashion and thus mirroring the approach to writ-
ing of Lord Denning himself, who made a conscious and concerted effort
to shun a cold or clinical technique and, instead, cultivated a more colorful
and colloquial style.12 Dennings impact on the common law came partly
in the form of particular changes to legal rules, often accompanied with
disdain for formalities or even for fixed principle, and partly in the form of
his willingness to wade into social policy, often burdened by a striking
nostalgia for the way England was or should be.13
The metaphorical role of gardener refers to Dennings penchant for
dramatic weeding, directed replanting, and attentive nurturing, all within
the pastoral countryside for which he took responsibility. But, as was the
case with Denning, dedicated gardeners sometimes forget to look up at
the horizon, and aging gardeners sometimes refuse to retire. Hutchinson
does not offer an elaborate critical analysis of the racist and sexist views
expressed by Lord Denning both pre- and post-retirement, but accepts
them as objectionable elements of his personal philosophy,14 warts …
[that] detract from his attractiveness but not from his influence.15 More
could be done to probe the reasons for which law students and jurists can
combine distaste and even horror at some of Lord Dennings pronounce-
ments and priorities with admiration, amusement, and even awe. In
Hutchinsons hands, Lord Denning is compared to Star Treks Captain
Kirk and, a few pages later, to Winston Churchillbold, imperfect, coura-
geous, distinctive, larger-than-life, and unforgettably great.
The back-and-forth from England to the United States, the all-white,
male, and Christian collection of characters, and the explicit scrutiny of
decision-making within the confines of Anglo-American common law come
to an end as Hutchinson moves to his final three subjects: Thurgood Mar-
shall, Bertha Wilson, and Albie Sachs. The question of the relationship
between law and justice, or between judging and social values, runs
through all eight chapters. But with these three, the job description no-
ticeably shifts. The greatness of these judges is explicitly located in the
links forged between the individual person, the particular social context,
the power of judging, and the impetus for change. The focus throughout is
on constitutional law, fundamental freedoms, and the administration of
justice. Indeed, the only common law private law judgments that receive
sustained attention are two judgments of Justice Bertha Wilson while on
12 Hutchinson, supra note 1 at 151.
13 For more on Lord Dennings nostalgia, see Dennis R Klinck, This Other Eden: Lord
Denning’s Pastoral Vision (1994) 14:1 Oxford J Legal Stud 25.
14 Hutchinson, supra note 1 at 171.
15 Ibid at 172.
218 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
the Ontario Court of Appealnot coincidentally decisions with influential
impact on human rights protection and anti-discrimination (Bhadauria
and Becker v. Pettkus).16
These last three chapters feature the first African-American Justice of the
United States Supreme Court, the first woman Justice of the Supreme
Court of Canada, and the most famous and apartheid-fighting Justice of
the South African Constitutional Court. All are leaders well-known for
who they were, the institutional barriers that they broke down on a per-
sonal and professional level, and the ways in which their voices and vi-
sions resonate in their judgments.
The three descriptions of these judges, their courts, and their coun-
tries and constitutions are compellingly presented. But, although
Hutchinson asks the inevitable questions as to the links between great-
ness and individual identity, he does not turn his discussion into an ex-
tended analysis of the sometimes crudely-drawn connections between per-
son and politics; or between race or gender, on the one hand, and substan-
tive positions in law, on the other. In Hutchinsons words, Justice Mar-
shalls standing as a great judge cannot be divorced from, even if it is not
reducible to, his status as a black American,17 and Justice Wilson never
forgot what it felt like to be a new immigrant [in her case, from Scotland]
… [or] the injustices and indignities that women still had to face in Cana-
dian society.18 The title of the chapter on Bertha Wilson, Making the Dif-
ference, draws from her 1990 lecture in which she asked, Will women
judges make a difference?19 Hutchinson takes up the invitation to reflect
on the ways in which diversifying the bench may, and should, bring
changes to the form, tone, and content of judging, and to societal interac-
tions more broadly. By choosing as his last great judge Justice Albie
Sachsa white, Jewish South African leader instrumental to the collapse
of South African apartheidHutchinson refutes any simplistic assump-
tion that the impetus and talent to bring about crucial transformation
across a society can only be found in individuals belonging to particular
identity-defined communities. Indeed, the closing remarks in this final
chapter describe Sachs tribute to his non-judicial comrades-in-struggle
against apartheida reminder that the greatness of each member of this
16 Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology
(1979), 27 OR (2d) 142, 105 DLR (3d) 707 (CA); Becker v Pettkus (1978), 20 OR (2d) 105,
87 DLR (3d) 101 (CA), cited in Hutchinson, supra note 1 at 22223.
17 Hutchinson, supra note 1 at 203.
18 Ibid at 220.
19 Madame Justice Bertha Wilson, Will Women Judges Really Make a Difference?
(1990) 28:3 Osgoode Hall LJ 507.
SEDUCTION OF LAW PROFESSOR
219
octet owes much to the others in the picture and to the support, commit-
ment, and collaboration of the people and communities in the background.
In the end, what are the pieces of the job description for common law
judge that stand out for Hutchinson? In his conclusion, he lists back-
ground, ideology, timing, longevity, popularity, character, and style
precisely the factors that shape the chapter presentations of each of the
octetas contenders. But then he is forced to acknowledge that he cannot
pin down shared characteristics: What it takes to become and be
acknowledged as a great judge defies simple elucidation or formulation.20
What he can say is that great judges make their own place … [and] clear
a space for others to create their own places;21 they are originals who, by
example and excellence, reveal a way of being a judge that makes what
has gone before no longer quite so obvious, acceptable, or ennobling.22 In
other words, we can pay attention, like he does, to the factors, but none of
them turn out to be decisive in the creation of greatness.
The eight chapters on the eight judges are interesting short essays in
themselvespartly in their synthesis of what has been said before, and
partly in their illustration of Hutchinsons do it their way sense of
greatness. They embody the choosing and musing that shape the pro-
ject: they capture the reasons for which these judges continue to be recog-
nized as great figures in the landscape of British, American, and Com-
monwealth history, as well as the authors critical admiration of their
characters and contributions. But, in the same way that it is hard to find
a common thread through the preoccupations and forms of judicial biog-
raphies, or to explain the fascination they hold, it is difficult to figure out
the take-away message about the making of the common law and the spe-
cial roles of judgeswhether good or greatin that process.
What Hutchinson does not note in his book is that, for most of its his-
tory, the common law did not treat judges as particularly important at
all.23 In old books and reports of the common law, we might find the
names of the reporters and commentators and of the king or queen. But it
is not until the eighteen hundreds that judges began to become significant
in the development of the common law. That coincides with the slow tran-
20 Hutchinson, supra note 1 at 275.
21 Ibid.
22 Ibid at 267.
23 For more on the history of common law and its judges, see generally AWB Simpson, An
Invitation to Law (Oxford: Basil Blackwell, 1988); DJ Ibbetson, A Historical Introduc-
tion to the Law of Obligations (Oxford: Oxford University Press, 1999); H Patrick Glenn,
Legal Traditions of the World: Sustainable Diversity in Law, 4th ed (New York: Oxford
University Press, 2010) at 23847.
220 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
sition of the common law from a law of writsall about form, with dis-
putes over facts decided by juriesinto what we understand to be the
common law content and method today. And it underscores the fact that
the job description of the common law judge had changed radically just
prior to the time period covered by Hutchinsons octet, and continued to
evolve over the nineteen hundreds, especially through the work of the
courts to which these judges belonged.
This reminder of the historical timeline of the common law helps us
sharpen the questions we do and should ask with respect to the nature
and limits of common law judging. Should the job description for common
law judges be somehow tradition-specific, distinct from that of their civil
law counterparts? Should it conjure up the historical divide between the
common law and equity, such that judges understand their roles and re-
sponsibilities differently depending on whether they put on a common law
or equity hat as they make a decision? Should the job description be care-
ful to avoid elements shared by the posting for policy-makers or legisla-
tors? Understanding what common law judges are expected to be and to
do partly depends on knowing what they are not, and what they do not or
cannot do on the job.
III. Exercise ThreeRelationship to Restraint?
The third and final exercise examines the relationship of common law
judges to the restraints they feel within their legal tradition. The Ad-
vanced Common Law Obligations students read judgments related to the
tort of negligence by both Lord Denning and Justice Cardozo (a great
common law judge who did not make Hutchinsons top eight). At the same
time, they read critical commentary on Lord Dennings pastoral vision,
Cardozos own work on the connections between judge and legislator, and
essays on the distinctive history, form, and future of the common law.24
They notice the ways in which Cardozo and Denning, albeit differently,
use their storytelling talents to shapeor forcethe law in new direc-
tions. And then they are asked whether and how these great judges feel
restrained in what they do. Where does such restraint come from, and
how is it understood?
24 See especially Klinck, supra note 13; Benjamin N Cardozo, Lecture III. The Method of
SociologyThe Judge as Legislator in The Nature of the Judicial Process (New Haven:
Yale University Press, 1921) 98; Cass R Sunstein, On Analogical Reasoning (1993)
106:3 Harv L Rev 741; Karl N Llewellyn, This Case System: Precedent in The Bram-
ble Bush: The Classic Lectures on the Law and Law School (New York: Oxford Universi-
ty Press, 2008) 55; Geoffrey Samuel, Epistemology and Method in Law (Aldershot, Eng-
land: Ashgate, 2003).
SEDUCTION OF LAW PROFESSOR
221
Hutchinson never quite asks this question explicitly. His book cele-
brates resistance, boldness, leadership, energy, and vision. Perhaps, how-
ever, these judges are all particularly astute at understanding where the
boundaries are, and that is exactly why they can transgress them without
destroying the foundations and framework of an entire legal tradition.
Those transgressions are transformed into indicators to others of where to
place their feet in order not to fall off the path. H. Patrick Glenn captures
this notion of bounded, yet still risky, independence of judges in the com-
mon law tradition: [T]hey commit themselves to an ethic of independent-
ly administering justice, within the cadre of the law. They are freed to be
law-seekers, and not law-appliers. They are self-disciplining loose can-
nons, dangerous for systems.25
Three obvious boundaries or sources of restraint come out in the class
discussion of this third exercise. First, the specificity of common law
methodology lies in its demand that judges always pay attention to the
past in the form of precedent, and that they proceed in an inductive man-
ner from the ground up. Second, the historical divide between law and
equity meant that common law judges were bound to apply rigid rules
even in the face of injustice, and that the possibility of correcting such in-
justice lay in something beyond law. The third boundary is perhaps most
succinctly captured in Lord Devlins assertion that [s]ocial justice guides
the lawmaker: the law guides the judge.26 That is, precedent and princi-
ple are the stuff with which the common law works; judges are neither
well-suited nor well-prepared to make decisions according to some unde-
fined parameters of social justice.
If these restraints were literally understood or applied, Hutchinsons
eight great judgesand others like themmight be cast as failures or
even traitors to their legal tradition! But the fact that great judges test
the limits and transgress the boundaries does not necessarily mean that
they do not respect restraints. Neither does it mean that those restraints
do not continue to influence and shape the common law. The implications
of the three restraints for figuring out greatness might be the following.
First, great judges understand that they have to pay attention to the past.
They might be particularly creative with the analogies they use, they may
find other ways to hold onto tradition, they may convincingly redefine the
ground upon which they build, and they appreciate that resort to open
breaking with precedent should be exceedingly rare. Second, great judges
take seriously the merger of law and equity, and the ways in which flexi-
bility is woven, even if unevenly, into the common law tradition. Thus,
25 Glenn, supra note 23 at 258.
26 Lord Devlin, Judges and Lawmakers (1976) 39:1 Mod L Rev 1 at 7.
222 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
correcting injustice becomes part and parcel of the responsible rethinking
and resetting of principles core to both private and public law. Third, and
perhaps most difficult to articulate, great common law judges do not mis-
take themselves for legislators and policy-makers. Even when they make
an explicit appeal to policy-related considerations in their decision-
making, they know that their role is not the same as that of individuals
elected to govern or appointed to administer. The line is hard to draw, but
great judges know it is there.
Lord Denning divided judges into timorous souls … fearful of allowing
a new cause of action and bold spirits … ready to allow it if justice so re-
quired.27 It was clear to which camp he thought he belonged. But the di-
chotomy is exaggerated. In between fall all the judges ensuring that the
common law respects the past at the same time that it moves forward.
Cardozo referred to this task as one of fill[ing] the open spaces in the
law28a far cry from creating law from scratch, but an honest acknowl-
edgement of the judges prerogative in finding gaps that need to be filled.
One of the fascinating things about common law judges is that they do
make the law, but they must say that they do not. Indeed, we start to
worry when they do not seem restrained. In that sense, Denning might be
great, but we could not have more than one of him.
A key strength of the common law tradition, says Lord Goff in a lec-
ture at the turn of the twenty-first century on the future of the common
law, is the fact that we can hear the voice of the individual judge speak-
ing from the page.29 Judges author their judgmentsmajority, concur-
ring, or dissentingand, in that way, they personalize their contributions
to an ongoing conversation. Their judgments have a real impact on people,
societies, and lawmakers, but they are tested and evaluated over and over
again by lawyers, other judges, academics, and students. Judges are
judged on the basis of their judgmentsfor the expressive quality of their
writing, for their ability to compare and contrast, for the clarity of their
insights, for the clairvoyance of their perspective, and for their sensibili-
ties vis–vis the people whose interests, identities, and integrity are at
stake. They participate in the constant transformation of what has gone
beforeas they restate precedent, articulate principle, and integrate poli-
cyand the constant re-laying of foundations to what will follow.
27 Candler v Crane, Christmas & Co, [1951] 2 KB 164 at 178, [1951] 1 All ER 426.
28 Cardozo, supra note 24 at 113.
29 Lord Goff of Chiveley, The Future of the Common Law (1997) 46 ICLQ 745 at 756.
SEDUCTION OF LAW PROFESSOR
223
Conclusion
Hutchinsons book shows us how one law professorknown for being
particularly apt at deconstructing the strong and sometimes problematic
links between assumptions and structures in society and lawcan be
transfixed by eight individuals and their imprint on law, its teaching, and
its practice. In this sense, perhaps it tells us less about these judges and
their lives and legacy than it does about law professors and legal scholars,
particularly in the common law. As teachers, researchers, and partici-
pants in public policy, professors are also mentors and role models, mas-
ters of legal doctrine and commentary, storytellers, and the lead actors in
their classrooms. If there is a risk in overstating the importance of judges
in the flourishing of law and society,30 it is matched by the risk of over-
stating our own importance as the people who judge the judges. For both
great judges and great teachers, it can be too easy to forget the tempering
effect of humility, grounded in the realization that the power to make
law or to shape lawyers is necessarily partial.
Hutchinsons book is not as lighthearted as the title appears to prom-
ise. Readers cannot simply respond with, Isnt that interesting? or, Ill
have to slip that anecdote into my teaching or into a conversation at a law
school alumni event! Rather, they are invited to participate in ongoing
discussions on the diversity of the bench, the potential tension between
furthering social justice and respecting the integrity of legal principles,
and the ways in which perceptions and the relevance of greatness can
change. In other words, the justifications offered by Hutchinson for the
choices he makes, whether with respect to the individuals or the high-
lights of their contributions, turn the book into more than a synthesis of
interesting information gleaned from all available sources.
If it cannot be labeled humorous, however, neither is the book as seri-
ous as it could be as a discussion of how and why the common law sets the
parameters, roles, and responsibilities of its judges. Readers who open the
book looking for insight and reflection on the mode of activity, expression,
thinking, and contribution represented by common law judging might not
feel that the search is over when they reach the end. But they will proba-
bly be able to pose their questions more clearly, to see more sharply the
complicated connections and overlap among the issues relevant to judges
and judging in the common law. They may even ask the hardest question
30 See Roderick A Macdonald & David Sandomierski, Against Nomopolies (2006) 57:4 N
Ir Legal Q 610, for their response to Robert Covers emphasis on the power and violence
of judging (Robert M Cover, Violence and the Word (1986) 95 Yale LJ 1601), in which
they argue for a more limited and nuanced view of the role of the judge.
224 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
provoked by the book: Why do we care about great judges at all? Per-
haps the era of greatness in common law judging has come to an end.
Finally, Hutchinson knows that this book contravenes restraints often
associated with academic legal scholarship. Assertions are often substi-
tuted for arguments, stories and even quotations are often left uncited,
metaphors (often mixed) abound, and thesis development is sometimes a
little murky. Transgressing the boundaries in legal writing, just as with
judging, can be a way of insisting on doing things ones own way. It can
sometimes even signal true greatness. Rather than achieving that level,
the book itself is solid and accessible. But, in writing it, the author cele-
brates anyone who inspires others to change their own directions, chal-
lenge their own assumptions, and strike out on new paths. Those are the
peopleperhaps like Hutchinson himselfwho can confidently laugh out
loud at whatever gods are out there.
