judicial tyranny

Justin Schwartz jkschw at hotmail.com
Fri May 18 07:45:06 PDT 2001

John and I disagree about how much indeterminacy there is in appellate cases, partly because we have different criteria. He thinks that if appellate panels disagree, or there is a rehearing en banc (by the full court), or the Supremes reverse, then the answer is indeterminate. Essentially, the idea is that if the professionals disagree, who is to say. I think this ignores the degree to which the appellate courts are--yes--politicized. Anything coming out of the 4th (especially), 5th, or 11th Cirs is suspect; these are hard right courts that are very "activist" and result oriented. The Supremes (which account for every few cases, about 80 a year, not all of which are reversals) are wholly politicized.

In my arrogance, I trust my own judgment about which cases are slam dunk; I normally think I am right, like everyone else, although I have been persuaded otherwise in granted motions to reconsider and the like. But I think I know the diffeence between cases where I think I am right, but reasonable lawyers might reasonably differ, and the vast majority of cases where I think there is no reasonable difference on legal questions. (Questions of fact are another story.) John, why will I learn to disguise this? What's wrong with it?

As to invoking morality where the outcome is indeterminate, sure. I am working on a paper on this. How could one not do that? We want judges to do justice within the law, and how can they do justice except according to their own lights? They should use somebody else's lights, maybe? But, since their lights differ, we want the justice they do to be within the law, so where the outcome is clear, we want them to do what the law says whether we like what the law says or not.


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

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