Ernie the Attorney : searching for truth & justice (in an unjust world)
Updated: 6/5/2003; 10:32:42 PM.


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Friday, April 05, 2002

If laws were tools - "hey, Joe, can you pass me one of those...?"

We've all heard the Bismarck statement.  "There are two things that you don't want to see being made, and those are laws and sausages."  Let's put aside the question of manufacturing methods.  At least with sausages we know why there are made.  With laws you can never really be sure.

A lot of laws get passed for the reasons advanced by Professor Ronald Rotunda, who when asked why a particular law would likely pass that, in his opinion, was not going to solve the problem it was directed toward, said the reason was "because Congress meaures its productivity by passing laws."  ABA Journal (April 2002, p. 42)

The notion that legislatures pass laws that serve no purpose other than for the law's proponent to tell his constituent that "we did something about..." should shock no one.  It's a given.  Hundreds of laws are passed everyday that either are totally unworkable right out of the box, or carry only a veneer of plausibility.  In Louisiana, we make it a point every three to five years to pass a ridiculous law that a first year law student would know is blatantly unconstitutional.  But it makes a certain segment of the population feel good. 

When I was a first year law student it was the Creationism law, which tried to get around the First Amendment's prohibition against the state favoring religious teaching. Those clever religious fundamentalists had a clever plan: they wouldn't require the teaching of creationism.  What they would do is say that the schools had to teach all of the viewpoints relating to how the universe was created.  One of those viewpoints just happened to be Creationism.  The State spent God knows how much money litigating that issue, which ultimately went to the Supreme Court.  One of the issues was whether the trial judge (who is the judge I wound up clerking for) properly disposed of the case by way of summary judgment, which for you  non-lawyers means, without a trial.   I mean, think about this for a second:  the fundamentalists wanted the judge to have a full-scale trial to take evidence so they could prove that the the legislature was not motivated by religious reasons when it passed the statute. 

That's an egregious example, but it raises a question.  In this modern age when information is spewing forth as if out of a volcano, and laws are spewing forth in the same manner, should we rethink the system?  Maybe it would be nice of some independent group would certify that a proposed law makes sense before it is passed.  I know we couldn't require certification (that would raise constitutional issues), but it would at least keep legislators from crowing about what a great law they had passed when the independent group gave the law a "thumbs down."  It could be sort of like when the ABA certifies a judicial candidate as qualified etc... Or like when Underwriters Laboratory certifies an electrical device.  After all, laws really are like tools.  Right?

11:56:03 AM    

The Wise Old Judge Retires

After a lengthy judicial career, the time came for the old country judge to retire.  His admiration in the community that he served was immense, and so the local newspaper could not let his retirement pass uncelebrated.  A young reporter was sent to interview the judge about his experiences on the bench, and excerpt of which is reproduced below:

Reporter:  Do yo feel like you were a much better judge when you left the bench than you were when you first put on the black robes?

Judge: Oh, definitely.  When I first took the bench, I tried very hard to make the right decision and to comb through all of the facts and arguments, but still it was very hard to make decisions.  I really struggled sometimes to get comfortable with that.

Reporter:  And did it get easier to make decisions later on?

Judge:  Well, some cases are just plain hard, even if you feel like you are making the right decision.  But I did find over the years that I a lot of the routine stuff got easier and I was able to make up my mind quicker.

Reporter:  Well, how did that come about?

Judge:  Well, I guess what happened was when I first took the bench, which like I was hard to assimilate all of the information.  I mean, all these fine lawyers would come into my court and the first lawyer would stand up and argue his points and do a good job, and I would think "well, that fellow's got a point and his client should win."  Then the other lawyer would get up and point out some other things, and I would think "well, now, he's got a point, and he should win too."  And of course, that would make it hard to make a decision.

Reporter: So how did you learn to deal with that better?

Judge:  Well, it's like anything I suppose.  After a while you pick up tips and know...ways of doing things that help you out.

Reporter: Well, what things helped you with the two lawyers arguing against one another?

Judge:  Well, after a couple of years on the bench, I learned not to listen to the second lawyer.  And that made it a lot easier...

11:27:25 AM    

© Copyright 2003 Ernest Svenson.

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