Comments on: turns out I’m not completely incompetent after all

By: Luis

Luis — Tue, 29 Aug 2006 22:59:23 +0000

Quite possible, Tim. I would have hoped that if that had been the case, Prof. Sovern would have mentioned it after the trial by fire. :) It did fit into a sequence of product liability cases, so it at least was not chosen in isolation purely for that point.

By: Tim Armstrong

Tim Armstrong — Tue, 29 Aug 2006 19:25:42 +0000

Luis, don’t overlook the possibility that you’re being assigned some cases to read precisely *because* they’re wrong. Assigning judicial opinions that make mistakes (unwarranted assumptions, unsupported inferences, fallacious logical reasoning, etc., etc.) is actually a pretty good way to teach law students legal reasoning, because you can tease out the errors during the in-class discussion. It frequently works better than assigning them the cases that get the law basically right. Students learn to take a stronger and more critical analytical approach to what they read once it’s clear that the opinions they’re reading aren’t necessarily the last word on the subject, and there’s also just something to be said for demythologizing the work of courts as fallible institutional and political actors. Will my students be reading the Supreme Court’s _Grokster_ decision? You bet. But if they come away from the opinion without a pretty specific sense of its weaknesses and trouble spots, particularly after half a semester spent taking apart other similar cases with me, then I won’t be doing a very good job as a teacher.

By: Luis

Luis — Tue, 29 Aug 2006 19:24:27 +0000

To clarify just a bit, it wasn't completely unrelated; just that the facts were a poor fit. The general ethics of it are a bit up for debate; adjusting and fine-tuning the common law (i.e., the non-statutory part of the law) has been a responsibility of the US court system since day 1, and of the English system for hundreds of years beforehand. So judges do make law, and as with legislators, sometimes that process isn't quite pretty. The presumption that legislatures make all significant laws is actually a fairly new one in our system- for a long time, judges made most law. (I sort of knew this, but it didn't really become clear until I read the quite excellent, short, and accessible 'The Ages of American Law'- probably worth a read for anyone curious about the historical evolution of our court system, though sadly it ends in the 60s.) My own sense is that in this case the offense is more in the fact that the opinion is really, really poorly written than in the law making itself; the law probably needed to be made (long story, maybe for another post) and would have been made eventually, either by the courts or by the legislature. So the offense is in making the law poorly and in bad context rather than making it at all.

By: Travis Bradshaw

Travis Bradshaw — Tue, 29 Aug 2006 18:21:29 +0000

I couldn’t help but think, isn’t that kind of activity at least a bit unethical? It seems unsettling that a judge with “a point to make”, “waiting for a chance” would project that agenda onto a case… especially one that it didn’t apply to.

Maybe I’m just overly idealist, but a judge should be ruling on the case at hand with the most clear, professional, and “correct” judgement possible, right? Why would it be acceptable to shove an ancillary (perhaps only losely related) point into a decision?

Just curious.