Law, Policy and Idiocy

(sent to law courts)

... you can't take the position that trial judges don't "make policy" because they do not create rules in the system. The trial judge has a set of applicatory choices to make over and over again, very frequently protected by discretionary appellate doctrines (e.g., abuse of discretion, clearly erroneous and harmless error). When trial judges decide how to wield this power, they are making "policy choices." For example: whether to accept binding pleas. Whether to "lean" on a case. There are all sorts of decisions the trial judge makes which are solely committed to his or her discretion, and which lawyers always want to know about so they can effectively market their services.

I continue to believe that this whole discussion is false. Whenever you say a judge does or does not "make policy," you have to ask yourself two simple questions: (a) what do you mean; and (b) so what?  It is the second part that needs more attention these days. People often do not realize that they are saying something normative about law when they speak this way. Once that premise is flushed out and plugged into philosophy of law, that's where the trouble arises with many of the views. Political scientists routinely have had this problem in the past. They don't realize in saying something about judges and "policy making" that they are also saying something normative and often indefensible in philosophy of law.

Here is what I want to say: one should avoid juxtaposing policy against "law" altogether. The language pair is awkward. One would no more ask whether judges "make policy" than they would ask whether they make cookies. It has no bearing on anything whatsoever. The only real normative issue is whether they have produced good casuistry. 

Asking whether an appellate judge "followed law" is a language game not unlike asking an academic whether he or she "followed intelligence." Or whether a parent made the right decision. One can only ever look at these things sort of in the way a good art critic does. To really see "politics" in judging, one has to read biographies and be in a position to recreate judicial psychology and state of mind. One has to have a sort of theater with the peson's life. Whether a judge makes appropriate decisions is really a same sort of question of whether the script in a drama is appropriate from the vantage point of one especially learned in such things.   

Regards.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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