Speaking for Others from the Bench

Legal Theory 29 (2):151-184 (2023)
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In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness.

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Wendy Salkin
Stanford University


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