Thought Provoking Law Quote: Judge Jerome Frank

Federal Court of Appeals Judge Jerome Frank was one of the leading writers in the Jurisprudence of Legal Realism. His 1949 work, Courts on Trial, is still relevant today as a critique on the ability of our trial system to effectively dispense justice.  From Chapter 6 of that work, The "Fight" Theory vs. The "Truth" Theory:

In short, the lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client's interests. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation.

                                      -Judge Jerome Frank, Courts on Trial, 1949

Speed Limits, Part Deux; Or Bad Media Coverage, Part Un Mille (One Thousand)

In an earlier post, I discussed Speed Limits as an example of Legal Realist thinking.  If the "written law" says the speed limit is 65, but no one gets a ticket until they drive faster than 75, then a Legal Realist thinker may well be justified in concluding that the law ("law in action") limits speed at 75, not 65. But, I was surprised to see this "speed buffer zone" practice formally acknowledged in public.

The Department of Transportation for the State of Connecticut provided information for an article in the Hartford Courant (DOT Task Force to Drivers: Don't Endanger Our Lives) that was supposed to encourage people to slow down when approaching highway work zones. The speed limits on many Connecticut highways is 55, and in other sections, it is 65.  Connecticut law has long allowed for fines to be doubled for speeding violations in marked work zones. But this statement caught me by surprise:

Effective Oct. 1, Connecticut law will get tougher. Motorists caught speeding through a marked work zone at 75 mph or faster -- or any trucker or other commercial driver who zooms through at 65 or more – will be ticketed. Those who are convicted will be required to attend an in-person retraining class in addition.

What? No tickets until speed 75?  This is the new law to crack down on speeding in work zones?  Thankfully, this is just another instance of bad writing. The law regarding ticketing for exceeding the speed limit has not changed.  It is still an infraction, subject to ticketing, for exceeding the posted speed limit by even one mile per hour (whether that is what happens in practice is another story). The "new" part is the driver re-training requirement.

I was not the only one to pick up on the misinformation.  A letter to the editor printed in the Courant expressed the same surprise.  The Courant printed the letter - but no clarifying explanation.  Once again, the "law in action" may be less about how the law is enforced than about the public perception of how the law is enforced.  That perception, unfortunately, is shaped by media reporting on lawmakers - not on the the law-makers, themselves

Legal Realism: The Law Depends on What the Judge Had for Breakfast

Leading Legal realist Judge Jerome Frank is credited with the phrase that "Justice is what the judge ate for breakfast."  I have never tracked down that precise quote from him but perhaps it is drawn from this passage found at p.162 of my well worn copy of Courts on Trial:

Out of my own experience as a trial lawyer, I can testify that a trial judge, because of overeating at lunch, may be somnolent in the afternoon court-session that he fails to hear an important item of testimony and so disregards it when deciding the case. “The hungry judges soon the sentence sign, And wretches hang that juryman may dine,” wrote Pope.  Dickens’ lovers well remember Perker’s advice to Pickwick: “A good, contented, well-breakfasted juryman, is a capital thing to get hold of.  Discontented or hungry jurymen, my dear sir, always find for the plaintiff.”

What happens if the judge had a "dicey looking breakfast burrito this morning and just took an imodium?"  See the video below:

Law Music Video: Liberty Song

This week the law music video is Liberty Song by Jordan Page.  I love his call to advocacy.  But I am not as enamored with his Libertarian ideology.  Doubtless, Mr. Page would agree with this quote from Woodrow Wilson:

“Liberty has never come from the government. Liberty has always come from the subjects of the government. The history of government is a history of resistance. The history of liberty is the history of the limitation of government, not the increase of it.”

I prefer this one from John Locke:

“So that however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law: but freedom is not, as we are told, liberty for every man to do what he lists (for who could be free when every other man’s humour might domineer over him?), but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”

What do your students think?

Speed Limit, 85 MPH ... or 90... Maybe 95 ... Going Once, Twice ...

In discussing the jurisprudential theories of Legal Realism, one of my prime examples is to ask students to think about speed  limits.  Speed limits are set by law.  The law may set the speed limit in an area at 25 MPH - but drivers rarely heed that law. It is well known that there is only a very small chance of getting a ticket for driving 26, or 27, or perhaps even 30. Driving faster than that increases the likelihood of  the driver becoming the subject of law enforcement action.  A Legal Realist considering these facts might argue that the speed limit law is not 25 at all, but 30. The words of the law may say 25, but the law in action imposes no penalty until 30.  Therefore, the conduct that results from law (both the written word and the system in action) is that people drive 30 MPH.  If law is based on the conduct that is shaped by imposing penalties, then the speed limit law is actually 30.

Then I found some verification in this story on CBS This Morning (Click on the image below to see the report):


More Legal Realism, here.

Law and Society: Do the Powerful Use Law For Social Ordering?

Students sometimes express an understanding of law as immutable moral codes.  Sometimes students begin a Legal Environment class with an inherent understanding that law is a "thing"  - like a tree in the woods - it just exists in nature and grows and develops on its own. I try to expose students to consider that law is the product of humans who make value judgments and public policy decisions about what the law will be and what it will try to accomplish.  Some followers of the Sociological Jurisprudence school of thought might say that law is used as a tool by powerful elements in society to maintain a social ordering that keeps them at the top. Others have said that law is often a crude tool and cannot be wielded like a scalpel to excise only undesirable conduct.

The following clip from the Daily Show reporting the Tucson Brd. of Education's elimination of the K-12 Mexican-American Studies Program addresses some of these points.  I think that it clearly demonstrates that law is manufactured by human beings with agendas to pursue. Law is not a unversal truth or morality that exists naturally.  And in this case, the law is in fact wielded surgically to excise conduct that was not in favor with the ruling class.

Click here or on image below to see video:

The video may play directly here:

The Daily Show
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Justice Scalia Says Natural Law is Relative

According to Justice Scalia's comments in the video below, "Natural Law" is whatever the majority says it is. So, if the majority decides that same sex marriage (for example) is not to be allowed, then that is what "nature" dictates. It follows, then, that if the majority votes that public corporations should not have the same free speech rights as natural persons, then that should be law, despite constitutional protection (as interpreted by the Supreme Court).  In reading Justice Scalia's comments during oral arguments and his decisions, one would conclude that Justice Scalia fancies himself an historian.  How many times in the course of American history has "natural law" been used to justify denial of basic rights to unpopular minorities? In a democracy, is there not a need for an institution that protects against the tyranny of the majority?

Justice Scalia also queries what qualities of judges make them more qualified to determine what the law is than the democratic majority. This video can be a good device to raise the counter-majoritarion difficulty for class.