Daily Archives: July 19, 2012

Nino On The Warpath

…hawking his book, giving interviews.

There’s something to “textualism”.  Something.  But you have to be wary of dogmas in the law.  After almost 30 years of Nino pushing the idea, the practical translation of Nino’s textualism has been consistent, to be sure:  gross favoritism in the courts to the parties who are already grossly favored in the first place.  It certainly makes outcomes “predictable”, then:  the government wins, the bank wins, the insurance company wins.

Judicial “restraint”, taken too far, becomes judicial abdication.  That’s probably not Nino’s intent, and I certainly don’t want to “offend” him or his colleagues, but a little time on the receiving end of his own jurisprudence would be eye-opening for him, although some others have proven resistant to correction even then. 

Let him try a case for a criminal defendant sometime.  Incognito, of course.

He’s no dummy, after all.

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Too Bad…

Juries don’t always get it right, do they?

From the descriptions in press reports, it was probably a stretch to claim that the sexual harassment type behavior by a prison guard was “cruel and unusual punishment”.  Then again, that 8th amendment argument was probably the only theory available in a civil rights lawsuit under 42 U.S.C. 1983, which in turn was the only entre into federal court.

Still, this confirms the now widespread belief that sexual assault claims are losers.  Sometimes they should be; but sometimes they should not.


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Another Gift From Ireland (Updated)

…one Philip Pilkington, via Naked Capitalism.

It’s nice to see a theme from around here being echoed elsewhere, especially when the theme is that we have a “rule of law” crisis more than an “economic crisis”, and that the solution may have more to do with lawyers doing their jobs than economists doing theirs – whatever that is, of course.

It is worth quoting from the very pithy article at length:

So the Conservative government launched the Radcliffe Commission in 1957 to investigate monetary policy and how it could be more effectively implemented.

The Radcliffe Commission was in no way radical. It was set up to defend monetary policy against its detractors and allow it to better function to counter the highly successful Keynesian spending and taxation policies of the war years. It was chaired by Lord Radcliffe, a man of conservative disposition who was no fan of Keynesian taxation policies. However, in its very greyness the Radcliffe Commission remained a great leap forward for truth and common sense. This was because the commission was chaired by mostly sensible public servants and lawyers. There were few economists involved that could sabotage the commission, engage in obscurantism and generally muddy the issues.

Emphasis supplied.
The writer goes on to note that economists ordinarily generate “intellectual sewage” amounting to little more than willful obscurantism designed to maintain their positions as “high priests” of the economy, fulsomely compensated in their academic and central bank sinecures.
And here I thought I was often overstating the case.
There is a problem with “scholars”, apparently.  It’s fine to be insulated from reality to some extent in order to ponder the larger questions, but it really should be an insularity informed by actual experience, at least to some extent.  But to use econo-speak for a minute, as the division of labor becomes more refined you wind up with too much separation between scholars and what they are supposedly scholarly about.  Then you get economists who seem to know nothing about the economy, and lawyers who seem to know nothing about the law as practiced.
Nobody should be a “professor” unless they have some experience trying to do what they are supposedly teaching others to do.  This applies in the law as well as economics.  And because this combination is universally lacking we have impoverished “scholarship” and practice increasingly mired in unenlightened, rote and even thoughtless dogma.
Both for economists and for lawyers.  But it’s more important, at this point, to address the problem in the law.
Because the law trumps economics.
N.B.:  If you’ve got a lot of time, don’t pass up this article either.
UpdateOh, the angst!  The moral ambiguity!  It’s so tough to have people seeking your oh-so-valuable opinion all the time.  The idea that what they think doesn’t matter and has no impact seems never to occur to law professors.  Why is that?


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