Brenda C. See, Written in Stone? The Record on Appeal and the Decision-Making Process, 40 Gonz. L. Rev. 157 (2005).
Rule Seven of Lord Hale’s renowned Rules for His Judicial Guidance provides: “That I never engage myself in the beginning of a cause, but reserve myself unprejudiced till the whole be heard.” Lord Hale’s rules for his own judicial conduct were composed more than three hundred years ago at a time when it was more than enough for a judge to aspire to be impartial, “not biased with compassion to the poor or favor to the rich,” and “[t]o abhor all private solicitations . . . in matters depending.” In twenty-first century litigation, Lord Hale’s admonition to reserve himself unprejudiced “till the whole be heard” does little to answer questions regarding judicial conduct, but rather raises them; such as, when has the whole been heard? Does the record from the trial court bind the decision-making processes of appellate judges, or is it merely a fraction of the information that appellate courts may use?