> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of JKSCHW at aol.com
> In my experience, I would say that about 70% of appellate cases are easy
> slam-dunks and another 20-25% are not easy, but almoast every respectable
> judge would come out the same way on them after thinking about them. It's
> only 5-10% of appellate cases where creativity, as opposed to hard work, is
> called for.
And the numbers at the district level are probably even more overwhelmingly one-sided in regards to legal issues, as opposed to debates over evaluating factual disputes.
But this I think reflects less the predictability of any legal philosophy than the fact that most cases make it to court and are appealled less because of ambiguous principle than because one or the other side is irrationally contentious (or rationally benefitting from threats of legal delay). Common sense interpretation of statutory law (or just common belief reflected in that law) says which way your average person would want the case to go.
Note the last comment on statutory law-- a lot of judges and legal scholars resent the fact that in everything from the Uniform Commercial Code to landlord-tenant law, decisions that once were battled out on common law principles are now specified in their particulars by statute. And some judges may just creatively misinterpret the facts involved to keep the statutes from being controlling -- your cite of the "I don't need any of you minorities" not being evidence of discrimination being an obvious example -- but clear statutory mandates in anti-discrimination law still constrains all but the most racist judges in what they can decide in a particular case. As noted by Justin, Posner philosophically may oppose a lot of statutory law, but he is considered relatively responsible in following its rules when they are clear.
As a card-carrying member of the anti-lawyer club, I of course applaud this undermining of the common law in favor of statutory rules. Where the meaning of a statute is in dispute, judges may refer to the common law, but they also use different strategies in interpreting legislative intent and in how to apply democratic theory to resolve ambiguity. This kind of haggling over meaning is quite different from the old common law judicial disputes that covered the judicial landscape in the past.
So, yes, most cases don't fall under much judicial discretion as a mathematical percentage. But it is the small percentage of cases where statutes don't cover them (or are too vague for clear guidelines) or evoke constitutional issues that negate legislative supremacy or have conflict of law between different court systems (state, federal, Delaware corporate) where there is no clear way to resolve them that judges get to play.
That said, Justin is right that most judges spend their time on the other cases. I did one interview for clerking of a judge, left-leaning Judge Reinhardt -- a former labor lawyer -- out at the 9th Circuit, who basically told me not to take the job since he thought any activist would better spend their time organizing in the streets. It's useful to get lefty judges on the bench, but once you have their vote for resolving the hard cases along the obvious ideological lines, he was very skeptical that any of the philosophical banter in the decisions mattered much for changing anyone's mind.
It was one of odder job interviews of my life. I ended up respecting the guy so much that I left convinced I shouldn't work for him :)
-- Nathan Newman