Tag: lawyers

When Reality Leads to Legal Realism

~ cafebedouin

“If courts don’t have to defend their decisions, then they’re just acts of will, of power.”

—Adam Liptak, “Missing From Supreme Court’s Election Cases: Reasons for Its Rulings.” The New York Times. October 26, 2020.

At base, Legal Realism, when you get past all the philosophical talk about natural science, is simple, “The law is what judges say it is.” There need be no consistency, for power need not offer explanations. The problem with the above quote is not a problem of shadow rulings, it points to something people don’t want to accept is a feature of the legal system as a whole. It’s more or less arbitrary. But, we need a method to resolve disputes. Every human society has judges.

The common law tradition has the advantage of trying to reach agreement among judges over time, a.k.a., stare decisis, but it still is based on granting the power to resolve disputes to certain people because it is convenient. As members of the country’s elite, judges will tend to align with elite interests. Everything else, such as the notions of positivism or “originalism” is just rationalizing “acts of will, of power.” See also: Exhibit A.

Exhibit A for Legal Realism: I’m Not in Washington Defense

~ cafebedouin

“‘Defendants maintain that because the state constitution defines Washington’s northern boundary in relevant part as the 49th parallel, the State does not have jurisdiction to prosecute them for crimes committed south of the international border between the United States and Canada, but north of the 49th parallel as currently located.’

Perhaps not wanting to create ‘a nebulous strip of territory along the border that was part of the United States, but not part of Washington,’ in the words of the AP, the Court ruled against the defendants. (Per the decision, ‘the political and conceptual location of the international and state borders was the same when Washington was admitted as a state, and remains so.’)  But don’t write off their case as entirely frivolous. One of the nine members of the Court, Justice Richard Sanders, dissented, arguing that ‘this case is easier than pi. The 49th parallel can be located to the decimal. If that term is ambiguous, the language of law is no more than sand shaped into castles at the arbitrary whim of he (or she) who wears the black gown.'”

-Dan Lewis, “I’m Not in Washington Defense.” NowIKnow.com. November 18, 2020.