Some Thoughts on Engaged Judging

Chief Justice John Roberts famously described the role of a judge as that of a baseball umpire, passively calling balls and strikes.2 This model has been substantially and accurately criticized, especially in the context of state court adjudications, where the litigants often do not have legal representation.3 That criticism, however, has focused primarily on procedural remedies, tied to the notion of an “active” or “engaged” judge4 as a means of improving the ability of the adversary system to deliver justice.5 In this article, I suggest that while this notion is important, it is incomplete, for a judge (in state court at least) is faced with a complex web of problems to solve, problems that in appropriate cases require not just a facilitator but a willingness to step outside the adversarial mode and to move the parties toward resolving issues in the context of the non-jury hearings6 the judge conducts.7