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The cannons of construction are just so fungible that you really can come to different results using those rules.<br /><br />But should we be surprised? Isn't this how we are trained in Law School Advocate and argue for a position, trying to use the law and fit it into you clients position? Then when you become a judge all of that training isn't just going to go away.<br /><br />Mike<br /><br /> <a href="http://www.joepatton.com" rel="nofollow">KANSAS LAWYER</a>Mikethelawstudenthttps://www.blogger.com/profile/09635776361535851712noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-60118101587243596082011-04-06T13:12:56.383-04:002011-04-06T13:12:56.383-04:00--> Tracy,
Out of curiosity, did you work for ...--> Tracy,<br /><br />Out of curiosity, did you work for a federal appeals court?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-14017459592202058552011-04-06T09:42:42.349-04:002011-04-06T09:42:42.349-04:00I clerked for an appellate judge many years ago wh...I clerked for an appellate judge many years ago who was very much of the opinion that trial court judges should be affirmed if at all possible. He was a trial court judge for 20 years, and he thought that they knew what they were doing, that they saw the witnesses and they knew what the "right" outcome was, and we shouldn't interfere with that if at all possible. To draft an affirming opinion, you didn't need to discuss it with the judge. But there were occasions when the trial judge was unavoidably wrong on the law, and we had to draft a reversing opinion. In those circumstances, we had to discuss it with the judge and convince him. But there were definitely times -- admittedly rare -- when objective law overrode subjective gut feeling of right and wrong.Traceynoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-26460437687084076012011-04-05T17:52:52.077-04:002011-04-05T17:52:52.077-04:00Obviously I agree that sometimes the relevant stan...Obviously I agree that sometimes the relevant standards are paid lip service. But that proves too much and we are back at the defeatist position (everything is subjective; let's go have a beer). In fact, I think the procedural balancing is quite important. I noted in this post (http://blackbooklegal.blogspot.com/2010/03/pearson-iqbal-discussion-about.html) that one of the problems with Pearson and Iqbal is that there is no balancing; all of the "discretion" cuts in one direction. And I make the same balancing point in the Pearson-Iqbal article itself (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1472485 ; p.42 of the PDF). <br /><br />My analysis, as you imply, does not answer questions about judges who decide cases in bad faith or based on baldly political reasons. But in the vast middle, there are myriad subconscious forces at work. And if procedural institutional balancing is an explicit consideration, then I think it can in fact work as a restraint -- albeit an imperfect one -- on implicit substantive bias.Goutam Joishttps://www.blogger.com/profile/09691585566720871473noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-12125284293192856132011-04-05T16:40:43.183-04:002011-04-05T16:40:43.183-04:00It may be an overstatement to say that standards o...It may be an overstatement to say that standards of review for, say, judgment on the pleadings or other dispositive motions really cut the balance you describe. In practice, the actual standard is often paid lip service. Courts purport to view the facts in the plaintiff's most favorable light, but inject weight and credibility into the analysis when they see fit. I'm sure you'll agree; I've read your other scholarship, and you've more or less acknowledged the same.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-2516874057134584262011-04-05T14:09:27.586-04:002011-04-05T14:09:27.586-04:00@1:40: I think that's one way to look at it. ...@1:40: I think that's one way to look at it. Let us suppose that society can articulate a set of "true preferences". An incorrect decision would be one that deviates from those preferences. Let us stipulate that all deviations are solely the product of judicial caprice.<br /><br />Judges concerned about their reputations might not, as you point out, want to be known as the one always getting things "wrong". But there is another sense in which procedure is prophylactic. Again, imagine some "true" medium. If we are concerned that different jurists will have different biases (in civil litgation, say, pro-plaintiff and pro-defendant), we might erect procedural safeguards to check against BOTH biases. Thus, we might counteract the pro-plaintiff jurist by letting the defendant dismiss the case on the pleadings. But we might warn the pro-defendant jurist that, faced with such a motion, he must take all well-pleaded allegations as true and draw inferences in favor of the plaintiff. The defendant's liability at trial is balanced by the plaintiff's burden of proof, and so on.<br /><br />In this sense, countervailing procedural rules keep us from straying too far in either direction, and help tamp down a given judge from moving too far from the middle.Goutam Joishttps://www.blogger.com/profile/09691585566720871473noreply@blogger.com