Wednesday, October 06, 2010

20 Years

When one hears of a theory that posits that judicial decisions are caused by nothing more sophisticated than "what the judge had for breakfast", one assumes that it is the creation of some academic too long ensconced within the ivory tower. The phrase is attributed to the legal realist movement through Jerome Frank, and while it is a slight exaggeration of Frank's views (and thus a considerable exaggeration of the realist position, as Frank was well on their fringe), it does at least cast some illumination.

Frank believed that legal decisions are the product, not of legal doctrine, but of the fact-situation presented to the judge. Legal reasoning is just dressing to make it sound good. Moreover, Frank believed that how judges react to various fact-situations is nearly entirely idiosyncratic -- in that sense, it might as well go back to what the judge ate that day, for all the prediction one might do.

But Frank was not actually an academic at all. He was a trial attorney for 20 years, then chair of the SEC, and then a judge on the 2nd Circuit. Which I think makes his legal realist philosophy sound less ivory-towerish -- and more like a depressed drunk:
Let me tell y'somethin'. *hic* I've been, been practisin' law for 20 years. And it's all random. All of it. It's just whatever, whatever the judge thinks is right that day. Law -- you can find law for anything. Judges don't care. They just do whatever they think is right, and who knows what that is. 20 years of practice and it's, it's all random.

Or maybe not.

4 comments:

N. Friedman said...

David,

After nearly thirty years of practice, I think it can be said quite truthfully that Frank has a point. It may not be as random as he claims but it is also not as structured as it seems to be, from reading case law.

I recall a story, going back to my very first year in practice. An attorney with whom I worked prepped a strong argument that his client had been illegally searched. In the pre-argument discussion among counsel and the court, the judge said, please make a good show with your argument. I shall pretend to listen and ask questions. But know this: your client is a bad guy and I have no intention of disallowing the evidence.

That, in fact, is not a rare event.

Another friend of mine, who clerked for an appeals court, learned that a common legal theory among a number of judges on that court - and this was 30 years ago so it may not longer be applicable - was that justice means getting rid of cases in the most expeditious manner, without regarding to who is right and without regard to substantive law. Which is to say, to these judges, ending disputes is what courts are supposed to do, not doing justice and not obsessing about the law (unless, of course, it gets rid of the case). So, call it the technicality court of appeals.

sonicfrog said...

When one hears of a theory that posits that judicial decisions are caused by nothing more sophisticated than "what the judge had for breakfast", one assumes that it is the creation of some academic too long ensconced within the ivory tower.

I don't think one would assume that at all. I know you're condensing the theory down to it's bare essence, but it reads exactly like something that one who works in the field would write, and not an academic. It reminds me of the old saying about engineers and technicians. An engineer is the guy who went to college for eight years and applies all his book knowledge to designing a thing, the technician is the guy who actually has the hands-on / on-the-job experience to show the engineer exactly why the idea can't and won't work.

I guess it boils down to this... Who was the more skilled engineer, the more educated Jordie, or hands-on "I'm giving 'er all she's got" Scottie... And tehn Barkley has to come along and spoil everything!

Where the hell am I going with this again??? :-)

joe said...

Picard probably believes in the living constitution but Capt. Sisko is definitely a realist.

sonicfrog said...

Sisko would kick Picards.... Hell, Wesley Crusher could probably...