Law

Should Law Yield to a Judge’s Personal Beliefs?

by

Linda Greenhouse, writing about the late federal judge Stephen Reinhardt, also mentions Supreme Court justice William Brennan, and says “Doctrinal purity mattered less to him than extracting even the most gossamer claim to a favorable result.” She evidently sees this as a  good  thing.

I’m reminded of something written by Sebastian Haffner, who at the time of the Nazi takeover of Germany was a young lawyer working at the Prussian Supreme Court, the Kammergericht:

It was strange to sit in the Kammergericht again, the same courtroom, the same seats, acting as if nothing had happened. The same ushers stood at the doors and ensured, as ever, that the dignity of the court was not disturbed. Even the judges were for the most part the same people. Of course, the Jewish judge was no longer there. He had not even been dismissed. He was an old gentleman and had served under the Kaiser, so he had been moved to an administrative position at some Amtsgericht (lower court). His position on the senate was taken by an open-faced, blond young Amtsgerichtsrat, with glowing cheeks, who did not seem to belong among the grave Kammergerichtsrats…It was whispered that in private the newcomer was something high up in the SS.

The new judge didn’t seem to know much about law, but asserted his points in a “fresh, confident voice.”

We Refendars, who had just passed our exams, exchanged looks while he expounded. At last the president of the senate remarked with perfect politeness, ‘Colleague, could it be that you have overlooked paragraph 816 of the Civil Code?’ At which the new high court judge looked embarrassed…leafed through his copy of the code and then admitted lightly, ‘Oh, yes. Well, then it’s just the other way around.’ Those were the triumphs of the older law.

There were, however, other casescases in which the newcomer did not back down…stating that here the paragraph of the law must yield precedence; he would instruct his co-judges that the meaning was more important than the letter of the law…Then, with the gesture of a romantic stage hero, he would insist on some untenable decision. It was piteous to observe the faces of the older Kammergerichtsrats as this went on. They looked at their notes with an expression of indescribable dejection, while their fingers nervously twisted a paper-clip or a piece of blotting paper. They were used to failing candidates for the Assessor examination for spouting the kind of nonsense that was now being presented as the pinnacle of wisdom; but now this nonsense was backed by the full power of the state, by the threat of dismissal for lack of national reliability, loss of livelihood, the concentration camp…They begged for a little understanding for the Civil Code and tried to save what they could.

“The meaning was more important than the letter of the law”…Linda Greenhouse’s approving gloss on Brennan’s judicial strategy is in my view uncomfortably close to the methodology of this newly-assigned Kammergerichtrat. I am not saying, of course, that Greenhouse is a Nazi; I am, however, saying that the judicial interpretation approach that she prefers is highly dangerous.

(I discussed Haffner’s experiences at the Kammergericht, and their relevance to American today, in 2013 at Chicago Boyz, where an interesting comment thread developed)

Also highly dangerous: the attitudes and behavior of those CUNY law students…law students, mind you…who recently tried to shout down a talk being given by law professor Josh Blackman. See also  Blackman’s own article  about his experience at CUNY.

The mainstream of the Democratic Party and its supporting media has gone very far in the directions of legislation by the judiciary, and is moving rapidly toward the approval of politics by mob action. The prospect of Democratic control of Congress and/or the Presidency…even of Democratic dominance following a crippling of the Trump presidency…should be absolutely terrifying to all who value American institutions.

Haffner’s memoir is an important and well-written document; I reviewed it  here.

(The above was also posted at Ricochet, in slightly different form; so far, it is only on the Member feed)

Quote of the Day (Follow Up)

by

Conrad Black:

Mr. Trump isn’t the problem, but among the symptoms of the problem are that the director and deputy director of the FBI have been fired for cause as the Bureau virtually became the dirty-tricks arm of the Democratic National Committee, and that, as the Center for Media Studies and Pew Research have both recorded, 90% of national-press comment on Mr. Trump is hostile. Mr. Trump may have aggravated some of the current nastiness, but his chief offense has been breaking ranks with the bipartisan coalition that produced the only period of absolute and relative decline in American history.

I think Black is too harsh on George W. Bush but this column is otherwise excellent.

Quote of the Day

by

Conrad Black:

Here are two current examples of [the failings of the legal system and of journalism]: Canadians don’t like Donald Trump, largely because his confident and sometimes boorish manner is un-Canadian. He is in some respects a caricature of the ugly American. But he has been relentlessly exposing the U.S. federal police (FBI) as having been politicized and virtually transformed into the dirty tricks division of the Democratic National Committee. Few now doubt that the former FBI director, James Comey, was fired for cause, and the current director, backed by the impartial inspector general and Office of Professional Responsibility, asserts that Comey’s deputy director, Andrew McCabe, was also fired for cause. There are shocking revelations of the Justice Department’s illegal use of the spurious Steele dossier, paid for by the Clinton campaign, and of dishonest conduct in the Clinton email investigation, the propagation of the nonsense that Trump had colluded with Russia, and of criminal indiscretions and lies in sworn testimony by Justice officials. It is an epochal shambles without the slightest precedent in American history (certainly not the Watergate piffle), yet our media slavishly cling to a faded story of possible impeachable offences by the president.
 
The American refusal to adhere to the Paris climate accord is routinely portrayed as anti-scientific heresy and possibly capitulation to corrupt oil interests. The world’s greatest polluters, China and India, did not promise to do anything in that accord; Europe uttered platitudes of unlimited elasticity, and Barack Obama, for reasons that may not be entirely creditable, attempted to commit the United States to reducing its carbon footprint by 26 per cent, at immense cost in jobs and money, when there is no proof that carbon has anything to do with climate and the United States under nine presidents of both parties has done more for the ecology of the world than any other country. Journalistic failure on this scale, and across most of what is newsworthy, added to an education system that is more of a Luddite day-care network, produces a steadily less informed public, who, while increasingly tyrannized by lawyers, elect less capable public office-holders.
 
Lenin famously wrote: “What is to be done?” We must ask ourselves the same question but come up with a better answer than he did.

 

Strange Comparison, Dangerous Conclusion

by

About a week ago, the WSJ ran an article titled Mark Zuckerberg is No James Madison.  The article argues that a constitution is similar to a block of computer code—a valid point, although I would argue it is also true of legislation and contracts in general…both the code, and the constitution/law/contract must be sufficiently clear and unambiguous to be executable without reference to their originators.

Then the article goes on to say that ‘the Constitution understands human nature.  Facebook, dangerously at times does not.  In designing the Constitution, Madison managed to appeal to people’s better angels while at the same time calculating man’s capacity to harm and behave badly. Facebook’s designers, on the other hand, appear to have assumed the best about people. They apparently expected users to connect with friends only in benign ways. While the site features plenty of baby and puppy photos, it has also become a place where ISIS brags about beheadings and Russians peddling misinformation seek to undermine the institutions of a free society.’

The attempt to create a parallel between Zuckerberg and Madison is a strange one, IMO, given the completely different nature of the work the two men were doing. Madison was attempting to create a new model for a self-governing country, Zuckerberg was attempting to make money for himself and his investors, and maybe to provide a little fun and value for his users along the way.

What I find especially problematic is the ‘therefore’ that the author draws:

Facebook insists it is not a media company. Maybe so. But unless it takes on the responsibilities of an editor and publisher by verifying the identities of users, filtering content that runs on its platform, and addressing the incentives to post specious or inflammatory “facts,” Facebook should expect to be policed externally.

But is Facebook really a publisher, or it is it more of a printer?  If someone..Ben Franklin in the mid-1700s or some corporation today…is running a printing shop, running printing jobs for all who will pay, should he or it be held accountable for validating the truth of the material printed and verifying the identities of the customers?

Read more

Seth Barrett Tillman: How My Next Academic Article Begins

by

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.

Read the entire post.