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Approaches to judging a case
Over at the Volokh Conspiracy Orin Kerr has a link to an interview of a prof. who clerked for Justice Goldberg on the Supreme Court, in the early 60s. One passage caught my eye:
"Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result..."
I have no problem with a trial judge seeking a just result. Nor with an appellate judge seeking a just result within the law... construing a statute so as to accomplish a fair rule, if only because the legislative body probably intended that. But I do think it questionable to make that the entire purpose, and then working backward to make the law or Constitution conform. My idea of fairness differs from that of everyone else (e.g., having grown up as a construction worker's son, you can guess my idea of fairness in employer/employee relationships), and should not be able to override the Framers, or the legislature's, idea of fairness.
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i just remembered that "impedance mismatch" is borrowed phraseology. lest you think me crazy for discussing power transfer, which is not the analogy i intended to use:
http://en.wikipedia.org/wiki/Object-Relational_impedance_mismatch
GEEK ALERT!
It seems as it Goldberg was a disciple of Learned Hand rather than of Oliver Wendell Holmes. Too bad for all of us. The only room that I can see for the concept of justice in an appellate court's process is as an aid in determining the intent of the legislature when the text of a statute is ambiguous. If one interpretation would plainly result in injustice under most circumstances and another would not, then it would seem safe to assume that the legislature intended the later. Within the judicial system, I believe that it's the function of the jury to decide whether a a particular law and its application to the case at hand is just, rather than to blindly follow the instructions of the Court. If there's any branch that would seem to have been given the role of doing justice in our system, it seems to me to be the legislature, reflecting the will of the electorate. Clearly, I tend to side with Justice Holmes.
Holmes: "Three generations of morons is enough!"
Something to be said for that.
>>Within the judicial system, I believe that it's the function of the jury to decide whether a a particular law and its application to the case at hand is just, rather than to blindly follow the instructions of the Court.
I could not agree more.
However, as I understand things, neither the prosecution nor the defense are allowed to advise the jurors of the very real power they have - to disregard the instructions of the court - and to determine not only the facts, but the law as well.
Accordingly, most jurors are simply intimidated into being a "rubber stamp" for what the court wants.
both of those techniques seem appalling to me. but, i work in software; i am a legal ignoramus.
in my world, everything does exactly as i tell it to, and while all the failures are therefore my own inability to properly express myself within the confines of a formal system, they're all also immediately debuggable with a stack trace.
maybe the "problem" i see is that the judicial process is used for correlated but clearly different tasks: deciding guilt and dealing punishment while simultaneously altering the law as we understand it.
in the world of formal systems, you're generally more successful when you organize components into an architecture where they can serve exactly one task without interdependance. even if you group your components logically into modules for dealing with exactly one problem area, each individual piece has no reusability value if it needs any revising (hence the unix filesystem tools ls, df, du -- all still around after about 30-40 years).
so to my eyes, juries, one component within the system of trial, appear as though they decide more than they ought to: the design of the jury creates impedence mismatch between what to do with someone who is clearly guilty, and what to do with the law under which you can appropriately punish them.
a second group of the people serving on the same trial, collecting all the same evidence but not passing judgement, might well better serve the law from a review standpoint -- but it might well unveil some ugly truths from the other group, whom are passing judgement, alone.