judicial tyranny

Wojtek Sokolowski sokol at jhu.edu
Tue May 15 11:01:00 PDT 2001


At 06:34 PM 5/15/01 +0000, Justin wrote:
>I am familiar with the legal realist views, also the crit revampings of
>these. As someone who works with federal judges for a living, I think I can
>recognize the extent to which the critique is valid and to what extent it
>isn't. I can distinguish between bad decisions that are lawless, and those I
>think are awful but legally colorable or even legally required. I think that
>federal judges in the 7th Cir and on the Northern District of Illinois are
>capable of rendering a legally colorable decision against their own
>political views or preferences about the outcome, in about 90-95% of the
>cases. I can't speak so much for other Circuits, districts, or state courts.
>But I can tell you that I try real hard not just make it up and impose my
>policy preferences, and so does my judge.--jks

Justin, I'm not trying to undermine your views (which I value), but the above quote sounds to me like a texbook example of the so-called garbage can theory of organizational behavior which claims that organizational decisions are rationalized rather than rational - that is, they reflect the agendas of individual decision-makers rather than the principles defining the organization's mission, but they are ex post facto rationalized in terms of these principles.

Theres is considerable empirical support of that theory, and I see no reason why the judiciary should be any different. My general perception of the legal profession is that they tend to be more ideology-driven than the rest of the population (which is grounded in the importance of canon -as opposed to factual reality- in their professional practice). Ideology is a known factor affecting human cognitive processes. What is more, legal profession requires above-ordinary reasoning skill, and reasoning is essential for manufacturing rationalizations. Hence we have both the motive and the capacity - are you trying to tell us that the legeal profession has an extraordinary capacity to resist such temptation?

wojtek



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