judicial tyranny

[John Mage]

Coming home after visiting a friend (and client) in prison, I read my
email and then looked over my disagreement with Justin on indeterminacy.
There is an area of agreement, in that Justin agrees that 10 to 15
percent of federal appellate cases are in this sense indeterminate (that
is, that multiple decisions for either side are possible more or less
equally consistent with the canons of statutory and constitutional
interpretation and respect for precedent). I'd put the number higher,
but that is not important.

And that presumptively (that is, unless special circumstances can be
shown) includes all cases where there are splits in the circuits (that
is, where 3 judge panels in different appellate circuits have reached
such conflicting decisions on substantially similar facts and issues),
or where rehearing en banc is granted (that is, where the body of
appellate judges in a circuit require that the opinion reached by a
single panel be reconsidered by all the circuit judges), or where the
Supremes reverse a decision of an appellate panel. I put aside Justin's
dismissal of the 9th Circuit medical marijuana panel's opinion as just
obviously wrong (or whatever) as the symptom of a disorder common among
judge's clerks and assistant prosecutors which he will either recover
from or learn to disguise.

But putting suchlike aside, if among those cases that *we agree* are in
this sense indeterminate one should appear where one decision will cause
massive suffering and the other not, is it not obvious that the decision
that does not cause suffering must be correct?

The other position I find (and have always found, since Justin's view is
common)  shocking and horrific; not as a lay moralist but as a
Martindale AV practictioner (albeit now only working, praise the Lord
and the award of counsel fees in Rule 23 cases, pro bono).

john mage