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OurOwnMyths 29 - 16 Feb 2009 - Main.KeithEdelman
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I don't know what 'refactor' means, | | | "I think I'm really just saying that if we want to make sure we're really doing justice, we should always side with the underdog. (I suppose that might be obvious.)" | |
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< | For me, this label not only obvious, but tends to begs the question. I agree that we should side with the underdog; but isn't the "underdog" defined as the party that is suffering the greater injustice? Some examples facilitate relatively easy characterization (the indigent defendant vs. the "people"), but I'm not sure that this is always the case. I do believe that some situations require greater analysis into precisely who is the underdog. | >
> | For me, this label not only obvious, but tends to beg the question. I agree that we should side with the underdog; but isn't the "underdog" defined as the party that is suffering the greater injustice? Some examples facilitate relatively easy characterization (the indigent defendant vs. the "people"), but I'm not sure that this is always the case. I do believe that some situations require greater analysis into precisely who is the underdog. | | | If we do decide to represent the underdog, I agree that some worry exists as to how future litigants might construe the initial case for unjust gains. But as Professor Moglen referenced above, the solution is not to remain motionless, nor to imperatively act.
What type of analysis should occur before we act? Should we try to perform a type of balancing-test (the present injustice vs. the possible unintended, adverse effects of our representation in the future)? For some reason this doesn't seem satisfactory - perhaps it is too close to "transcendental nonsense". Maybe we should just be very careful to craft our arguments and representation to minimize any chance of misuse? | | | I've attached the brief to this page for anyone interested in these issues. It's a pretty quick read.
-- MichaelHolloway - 16 Feb 2009 | |
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> | Michael, I agree that by examining the facts of a particular case it is usually pretty easy to identify which party has suffered the injustice. What I should have clarified was that this examination may not always be possible when choosing a legal job. For instance, indigent criminal defense work might place you on the "underdog" side most of the time, however there might be people (as Robinson mentions) who "belong" in prison. Perhaps in that situation the characterization isn't so obvious? This might go back to the need to be able to choose your clients (something both Professor Moglen and Robinson have promoted) in order to achieve justice as a lawyer.
That's a very interesting situation/proposed solution to this (possible?) problem. I would hope that an explicit legislative intent would deter some judges, however I'm sure there are some who would freely disregard such text in authoring a contrary opinion.
-- KeithEdelman - 16 Feb 2009 | | | |
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