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AlexanderBernsteinFirstEssay 4 - 26 May 2017 - Main.AlexanderBernstein
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< | The Logic of the Law | >
> | The Whim of a Judge | | | -- By AlexanderBernstein - 10 Mar 2017 | |
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One summer a hundred years ago, a boy went swimming with his friends in the Harlem River. They were diving off of a wooden springboard that jutted out from the property of a railroad company. As the boy was preparing to dive, a rotting crossarm collapsed, freeing an electrified cable that flung the boy into the river and to his death. The mother sued the railroad, and the trial court promptly threw out the case because the boy’s use of the springboard constituted a trespass. | >
> | One summer a hundred years ago, some boys went swimming in the Harlem River. They were diving off of a wooden springboard that jutted out from the property of a railroad company. As one of the boys was preparing to dive, a rotting crossarm collapsed, freeing an electrified cable that flung him into the river and to his death. The mother sued the railroad for negligence, and the trial court promptly threw out the case because the boy’s use of the diving board constituted a trespass, and so the railroad owed the boy no duty of care. | | | Cardozo wrote an opinion reversing the lower court’s decision. By the lower court’s logic, a boy swimming in the public water beneath the diving board could recover, but the boy standing atop the board could not. He rejected the distinction as arbitrary:
“We may be permitted to distrust the logic that leads to such conclusions.” Hynes v. N.Y.C.R.R. Co., 231 N.Y. 229, 234 (N.Y. 1921) | |
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< | As we should. Whether the boy is on the diving board or in the water, the falling electrified cables seem to be the main problem.
I don’t think Cardozo is especially brilliant for coming to this conclusion (though the two courts below him and half of the Court of Appeals did not). Nor do I think he was especially compassionate towards children (Cardozo reaches the opposite conclusion in a similar case Adams v. Bullock, 227 N.Y. 208 (N.Y. 1919)).
What interests me is the statement about distrusting the court’s logic. I wonder: How often do we begin with our conclusions? One intuitively knows that it isn’t okay to let electrified wires fall on children. More to the point, I know that that boy’s mother should be able to recover, and the legal rules one way or the other should conform to that premise. I suspect Cardozo thought the same thing, mostly because he says so: the conclusion determines whether the logic can be trusted.
From this statement, one may deduce that all judicial opinion writing is a charade, a rationalization concocted after the real and instantaneous thinking has already occurred, after the mind has already been made up. Cardozo purports to base his opinion on, “considerations of analogy, of convenience, of policy, and of justice.” In other words, on none of these things in particular. Maybe his conclusions, and our own conclusions, come from a more personal place. Maybe it is in a crucible of our experiences, desires, prejudices, and morality that our conclusions are forged, and our logical justifications are ornamentation.
Many of my classmates, who have reached a similar conclusion, say that this is bullshit. Why should judges be able to foist their personal beliefs, often ignorant and pernicious, on the whole of the public? Many see the Supreme Court of the United States as a political mechanism like any other, and anyone who has read Bush v. Gore knows that this argument is not entirely without merit.
Verdict Afterwards
But I believe that starting with conclusions is not such a bad idea even in the most logical of settings. Take the following algebraic “proof” that two equals one:
Let a = b
a^2 = ab
a^2 – b^2 = ab – b^2
(a – b)(a + b) = b(a – b)
a + b = b | >
> | As we should. I don’t think Cardozo is especially brilliant for reaching this decision (though the two courts below him and half of the Court of Appeals did not). Nor do I think he was especially compassionate towards children (Cardozo reaches the opposite conclusion in a similar case Adams v. Bullock, 227 N.Y. 208 (N.Y. 1919)). | | | | |
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< | b + b = b | >
> | What interests me is the statement about distrusting the court’s logic. I wonder: How often do we begin with our conclusions? One intuitively knows that it isn’t okay to let electrified wires fall on children. More to the point, I know that that boy’s mother should be able to recover, and the laws one way or the other are important only to the extent that they lead to that result. | | | | |
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< | 2b = b | >
> | From Cardozo’s statement, one may deduce that all judicial opinion writing is a charade, a rationalization concocted after the real and instantaneous thinking has already occurred. Cardozo purports to base his opinion on, “considerations of analogy, of convenience, of policy, and of justice.” In other words, on none of these things in particular. Maybe his conclusions, and our own conclusions, are based on something more personal and fundamental. | | | | |
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< | 2 = 1 | >
> | But why should judges be able to foist their personal beliefs, often ignorant and pernicious, on the whole of the public? Many see the Supreme Court of the United States as a political mechanism like any other, and anyone who has read Bush v. Gore knows that this argument is not entirely without merit. Can we somehow fashion the law to protect us from the vagaries of a judge’s will? | | | | |
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< | When I first saw this in grade school, I was mystified. I knew that it had to be wrong, and I wasn’t quite smart enough to see why. And while the proof does not prove that two equals one, it does demonstrate that the patent falseness of a conclusion can be a faster and equally reliable indicator that the logic is flawed. You knew the proof was wrong as soon as you saw the conclusion, and you found the flaw in the logic afterwards, or not at all (if you’re still wondering, dividing by (a – b) is dividing by zero). | >
> | The answer would seem to be no. Any person subject to the power of the state is subject to the will of another person, whether that will is expressed through the judiciary, the legislature, or the executive. We like to pretend that a law passed by the legislature is the expression of the people’s will, but legislative agendas are set by a few select individuals, and the yea votes of a hundred or even a thousand party members cannot cure it of this deficiency. | | | | |
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< | Judicial opinions bear some resemblance to the proof. Most of the conclusions aren’t as obvious, but some are. I know, as I know that two does not equal one, that public institutions cannot be segregated and equal, that poll taxes do not admit fair access to voting, that criminal defendants cannot have a fair trial without representation. The point being that I know, and I would even venture that we know, that certain conclusions are true without building the logical foundations beneath them. | >
> | If a the law necessarily entails that one must exercise his will over another, then a judge is best suited to do so. Judges are the ones who interact directly with the parties whom the law affects. They know the facts of a particular case and have to reconcile those facts with the fictitious abstractions of the law (reasonability, proximate cause, commission versus omission). While legislatures are fact-finding bodies, judges are typically able to avail themselves of the research and findings available to the legislature, and there is little reason to believe legislators are more familiar with the practical effects of the law than judges. | | | | |
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< | As such, logic becomes of secondary importance. We don’t need good logic so much as we need good judgment. Because there is such a thing as good judgment and there is such a thing as bad judgment, and the difference between them is everything when it isn’t so obvious that two doesn’t equal one. Stare decisis, statutory interpretation, judicial trends, history and tradition, common ethos, constitutional law, structural relationships—they would tell you that there is nothing especially blameworthy about letting an electrical cable hurl a child into a watery grave. All that actually matters is what happens between two neurons in the mind of a judge, and whether that spark conceives the correct conclusion, before it is steeped in the logic and prolixity of the law. | >
> | In reality, the problem arises not from legislatures and judges trying to take power away from the other, but from neither wanting to exercise that power. Legislatures often give wide latitude to judges when drafting a statute so as to allow some leeway in applying it to a specific case. And judges, especially on appeals courts, frequently defer to the legislature to make any substantive change in law. | | | | |
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> | Furthermore, legislatures often look to scholars (not the will of the people) to tell them how to draft laws. Widespread legal codes like the almost universally adopted UCC and the influential MPC were drafted by select groups of legal scholars, not legislatures. If there is a way for the law to obviate the need for individual judgment calls, it is probably through heavily researched, standardized codes like these. Though these codes have their flaws and their implementation varies based on jurisdiction, they are probably the best way for the law to protect us from the caprices of a given judge, or at least better than the a law drafted by the legislature. | | | | |
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As we saw, the essence of legal realism, that law is what is does, leads to the conclusion that a judicial opinion is a rationalization of results otherwise arrived at. Hence Felix Cohen's concern with the irrelevance of logic, which you have arrived at by another route here. Why only formalism is politically tolerable to your interlocutor isn't clear, perhaps to him, certainly not to us. You're right, naturally, that what we want in judges is good judgment; the question is to what degree good judgment ought to be "reproducible." | >
> | But even if the perfect code were drafted by scholars and passed by a legislature, there would invariably be that last judgment call made by the presiding judge, by one person pronouncing what another person has to do. And this is more of a safeguard than it is an unavoidable flaw in the system. Justice would not be better served by actuarial tables than by individuals. As Cardozo demonstrates, it sometimes takes a human being to disregard all the legal abstractions and declare what is plainly right and what is plainly wrong. And so while we may be able to largely eliminate the vagaries of a judge’s will from the implementation of the law, such a result would ultimately be undesirable. | | | | |
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< | So you could tighten much of this draft, devoting yourself less to restating what we have read or discussed in other terms, and driving straight at the issue this draft located for you but did not have sufficient space to explore: is good judgment so individuated that there is no way to explain how it operates that will give us confidence that we are ruled by laws and not by the will of men or women?
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AlexanderBernsteinFirstEssay 3 - 06 May 2017 - Main.EbenMoglen
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The Logic of the Law | | | As such, logic becomes of secondary importance. We don’t need good logic so much as we need good judgment. Because there is such a thing as good judgment and there is such a thing as bad judgment, and the difference between them is everything when it isn’t so obvious that two doesn’t equal one. Stare decisis, statutory interpretation, judicial trends, history and tradition, common ethos, constitutional law, structural relationships—they would tell you that there is nothing especially blameworthy about letting an electrical cable hurl a child into a watery grave. All that actually matters is what happens between two neurons in the mind of a judge, and whether that spark conceives the correct conclusion, before it is steeped in the logic and prolixity of the law. | |
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As we saw, the essence of legal realism, that law is what is does, leads to the conclusion that a judicial opinion is a rationalization of results otherwise arrived at. Hence Felix Cohen's concern with the irrelevance of logic, which you have arrived at by another route here. Why only formalism is politically tolerable to your interlocutor isn't clear, perhaps to him, certainly not to us. You're right, naturally, that what we want in judges is good judgment; the question is to what degree good judgment ought to be "reproducible."
So you could tighten much of this draft, devoting yourself less to restating what we have read or discussed in other terms, and driving straight at the issue this draft located for you but did not have sufficient space to explore: is good judgment so individuated that there is no way to explain how it operates that will give us confidence that we are ruled by laws and not by the will of men or women?
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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AlexanderBernsteinFirstEssay 2 - 11 Mar 2017 - Main.AlexanderBernstein
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The Logic of the Law | | | 2 = 1 | |
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< | When I first saw this in grade school, I was mystified. I knew that it had to be wrong, and I wasn’t quite smart enough to see why. And while the proof does not prove that two equals one, it does demonstrate that the patent falseness of a conclusion can be a faster and equally reliable indicator that the logic is flawed. You knew the proof was wrong as soon as you saw conclusion, and you found the flaw in the logic afterwards, or not at all (if you’re still wondering, dividing by (a – b) is dividing by zero). | >
> | When I first saw this in grade school, I was mystified. I knew that it had to be wrong, and I wasn’t quite smart enough to see why. And while the proof does not prove that two equals one, it does demonstrate that the patent falseness of a conclusion can be a faster and equally reliable indicator that the logic is flawed. You knew the proof was wrong as soon as you saw the conclusion, and you found the flaw in the logic afterwards, or not at all (if you’re still wondering, dividing by (a – b) is dividing by zero). | | | Judicial opinions bear some resemblance to the proof. Most of the conclusions aren’t as obvious, but some are. I know, as I know that two does not equal one, that public institutions cannot be segregated and equal, that poll taxes do not admit fair access to voting, that criminal defendants cannot have a fair trial without representation. The point being that I know, and I would even venture that we know, that certain conclusions are true without building the logical foundations beneath them. |
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AlexanderBernsteinFirstEssay 1 - 10 Mar 2017 - Main.AlexanderBernstein
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The Logic of the Law
-- By AlexanderBernstein - 10 Mar 2017
Sentence First
One summer a hundred years ago, a boy went swimming with his friends in the Harlem River. They were diving off of a wooden springboard that jutted out from the property of a railroad company. As the boy was preparing to dive, a rotting crossarm collapsed, freeing an electrified cable that flung the boy into the river and to his death. The mother sued the railroad, and the trial court promptly threw out the case because the boy’s use of the springboard constituted a trespass.
Cardozo wrote an opinion reversing the lower court’s decision. By the lower court’s logic, a boy swimming in the public water beneath the diving board could recover, but the boy standing atop the board could not. He rejected the distinction as arbitrary:
“We may be permitted to distrust the logic that leads to such conclusions.” Hynes v. N.Y.C.R.R. Co., 231 N.Y. 229, 234 (N.Y. 1921)
As we should. Whether the boy is on the diving board or in the water, the falling electrified cables seem to be the main problem.
I don’t think Cardozo is especially brilliant for coming to this conclusion (though the two courts below him and half of the Court of Appeals did not). Nor do I think he was especially compassionate towards children (Cardozo reaches the opposite conclusion in a similar case Adams v. Bullock, 227 N.Y. 208 (N.Y. 1919)).
What interests me is the statement about distrusting the court’s logic. I wonder: How often do we begin with our conclusions? One intuitively knows that it isn’t okay to let electrified wires fall on children. More to the point, I know that that boy’s mother should be able to recover, and the legal rules one way or the other should conform to that premise. I suspect Cardozo thought the same thing, mostly because he says so: the conclusion determines whether the logic can be trusted.
From this statement, one may deduce that all judicial opinion writing is a charade, a rationalization concocted after the real and instantaneous thinking has already occurred, after the mind has already been made up. Cardozo purports to base his opinion on, “considerations of analogy, of convenience, of policy, and of justice.” In other words, on none of these things in particular. Maybe his conclusions, and our own conclusions, come from a more personal place. Maybe it is in a crucible of our experiences, desires, prejudices, and morality that our conclusions are forged, and our logical justifications are ornamentation.
Many of my classmates, who have reached a similar conclusion, say that this is bullshit. Why should judges be able to foist their personal beliefs, often ignorant and pernicious, on the whole of the public? Many see the Supreme Court of the United States as a political mechanism like any other, and anyone who has read Bush v. Gore knows that this argument is not entirely without merit.
Verdict Afterwards
But I believe that starting with conclusions is not such a bad idea even in the most logical of settings. Take the following algebraic “proof” that two equals one:
Let a = b
a^2 = ab
a^2 – b^2 = ab – b^2
(a – b)(a + b) = b(a – b)
a + b = b
b + b = b
2b = b
2 = 1
When I first saw this in grade school, I was mystified. I knew that it had to be wrong, and I wasn’t quite smart enough to see why. And while the proof does not prove that two equals one, it does demonstrate that the patent falseness of a conclusion can be a faster and equally reliable indicator that the logic is flawed. You knew the proof was wrong as soon as you saw conclusion, and you found the flaw in the logic afterwards, or not at all (if you’re still wondering, dividing by (a – b) is dividing by zero).
Judicial opinions bear some resemblance to the proof. Most of the conclusions aren’t as obvious, but some are. I know, as I know that two does not equal one, that public institutions cannot be segregated and equal, that poll taxes do not admit fair access to voting, that criminal defendants cannot have a fair trial without representation. The point being that I know, and I would even venture that we know, that certain conclusions are true without building the logical foundations beneath them.
As such, logic becomes of secondary importance. We don’t need good logic so much as we need good judgment. Because there is such a thing as good judgment and there is such a thing as bad judgment, and the difference between them is everything when it isn’t so obvious that two doesn’t equal one. Stare decisis, statutory interpretation, judicial trends, history and tradition, common ethos, constitutional law, structural relationships—they would tell you that there is nothing especially blameworthy about letting an electrical cable hurl a child into a watery grave. All that actually matters is what happens between two neurons in the mind of a judge, and whether that spark conceives the correct conclusion, before it is steeped in the logic and prolixity of the law.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
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