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Sunday, May 17, 2020

Segall on Con Law "Where the Justices Just Make Up the Law"

In case you missed it a couple of months ago, Eric Segall concisely skewered Supreme Court constitutional law jurisprudence, offering "10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed."

As I see it, lawyers must often pretend that the law makes sense and that decisions follow clearly and logically from precedent. Scholars, though, should be transparent about what follows from legal sources and what seems heavily influenced by policy or value judgments. Law professors should take on dual roles: teaching future lawyers how to effectively advocate inside a system that purports to be logical, rational, and built on existing legal sources while at the same time making clear how the games lawyers play do not necessarily reflect  unbiased mechanical application of the law. My own experience from law school about twenty years ago is that professors should have been more transparent about these two sides of the law, not just in constitutional law but in all law school classes. Perhaps that explains my own limited patience for judicial bullshit.

Posted by Adam Kolber on May 17, 2020 at 08:44 AM in Adam Kolber | Permalink


It's not necessarily bad for opinions to contain value judgments. Indeed, it's hard to imagine how things could be otherwise. Judicial opinions, however, often lack transparency concerning those value judgments. Judges often try to hide them or pretend that they are straightforwardly deciding from precedent when, in fact, they are doing no such thing.

Posted by: Adam Kolber | May 18, 2020 8:09:31 AM

I engage with Prof. Segall (who btw as an aside seems like a great guy & someone who tries to in good faith engage with people with which he disagrees though at this point he is losing patience with certain groups) online. I think he overdoes it though is a useful balance to those who don't recognize the things he points out enough.

I think law here often "makes sense" but they also include value judgments and judgments in general. I think that is part of human judging. We might not support some of them but so it goes. So, e.g., there were differences between the two Ten Commandments display cases though me personally am inclined to go along with Justice O'Connor etc.

Posted by: Joe | May 17, 2020 9:07:51 PM

Just to sum it up, or, as punch line:

Justice is best served, when, you deal with each case, as from scratch. Combined with, precedents and history as auxiliary, yet, not as binding, but guiding. Why guiding and not binding ? Because, only if there is total similarity, in factual and legal terms, between one precedent and current case, it is binding. But, the later, anyway, is pretty rare.


Posted by: El roam | May 17, 2020 10:31:52 AM

Important issue, and really baseless ( or rather, thanks to it, it is so important). For too many reasons, it may look so from the outside, to untrained observer. But, it is not so. We shall illustrate, how for example: social, cultural shifting, affects decisions, and not any making up of any law. For, Fixation, rigidity is unacceptable. Legal stability is important. But, must yield sometimes to social changes. No one can expect for example, to treat defamation lawsuit or interstate online commercial issues, in the same manner, in the pre - internet era, and the post era. This is unrealistic simply.

The same in " Janus " for example. Case of first amendment, speaking of which. Things have changed. The court has given bunch of well coherent reasoning. But above all, speaking of changes , I quote ( from the Syllabus):

The Abood court's fear of conflict and disruption if employees were represented by more than one union have proved to be unfounded.


Whatever may have been the case 41 years ago when abood was decided, it is thus now undeniable that "labor peace" can readily be achieved through less restrictive means than the assessment of agency fees.

End of quotation:

So, the courts admits, that things have changed, and in accordance, its stance has changed. Otherwise, we want for example, a court, that would stick to old fashion doctrines ?( before the internet came in). It must shift in accordance. Must stay sensitive to new fashions, new perceptions, new doctrines.

Here to Janus:


That was one too good reason. Reasons in abundance can be given. But, we don't read correctly rulings. We don't understand them. Not perceive it correctly, until the last bit of it. Until last details. For, every change, slight change, in factual configuration, may yield, totally, different results. That is the law. Justice is best served, when, each case starts from scratch. As totally, individual one and independently. But, on the other hand, without, precedents or jurisprudence, things may become, totally, not coherent. Arbitrary, and biased.

Combining them both, is very hard. Very complicated. Observer from the outside, can't reach it simply.

Concerning the constitution. Well, gaps are there. That is the way it is. Judges, need to clean the mess, left behind by legislators. The constitution, says nothing about any immunity, to any president. It had to. Yet, not done. So, the courts, had to intervene. That's the way it is. Can't be otherwise. Otherwise, you would expect, the legislator, to cover in advance, any prospective occurrence . But it can't. Even fundamental occurrences, can't be predicted.

So, the best thing, is to teach students, that justice is best served, by, combining or integrating, zero (from zero) and precedents and history, as auxiliary. Each case, from scratch. Generating mess. Yes. But, this is justice. Otherwise, it is not justice. But, industry.


Posted by: El roam | May 17, 2020 9:46:51 AM

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