Neoclassical Econ v. Posnerian Law and Econ Analysis(RE:Greenspan on Se...

Sun Jan 16 11:56:34 PST 2000

In a message dated 00-01-16 08:16:06 EST, you write:

<< 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).

Actually I think incompetent lawyering has a lot toi do with it--a lot of lawyers don't see that they can't win (or how they could win); with appeals, civil appeals, I think either lawyers greedily advise their clients to appeal hopeless cases to get billable hours or don't know any better.

Criminal cases are a different story, of course. Criminal appeals are generally hopeless, but you can't blame the defendants for trying. Hell, criminal trials are generally hopeless--about 95% of defendants are convicted. But again, you might as well try when you are facing 10 years mandatory minimum or whatever.

However, the fact is that the law is generally clear enough in most cases, and as I was saying, this is in part because most federal judges, anyway, and many state appellate judges, do adhere to precedent. Call that a legal philosophy if you will. I call it good judging.

> 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.

In civil cases, this is surprisingly true. Which means the law is bnetter thana lot of leftists give it credit for being.

> 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.

I don't know who resents this. Judges _like_ easy decisions. We have 380 cases in my court's docket. If we can bounce a few out because the statute is clear, hurrah! Some appellate judges like exercising their lawmaking powers--I can think of a few on the Seventh Circuit who do. The ones I respect most, including Posner, don't. Neither did Judge Cummings nor does Judge Rovner, the judges I clerked for there.

> 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.

Well, what counts as "direct evidence" is wholly judicially decided, not determined by statute. But the precedent is clear. Here we have the First Circuit exercsing its power to redetermine the facts, which it ought not do.

> 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.

I think a lot of the common law is just fine. Statutes do help make things more predictable, which is also great.

> 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.

How so?

> 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. . . where there is no clear way to

resolve them that judges get to play.

Sure, and no waya round it.

> 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, [Judge Reinhardt]

was very skeptical that any of the philosophical banter in the decisions

mattered much for changing anyone's mind.

Quite right.


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