11 Comments

What are the proposed solutions? Even recognizing such a bias, I wouldn’t want a judge who has no legal background.

The solution is to simplify the law such that

1) Everyone can understand it (reduces the need for lawers and suits)
and
2) Therefore, anyone who is reasonably well educated (doctor, engineer, accountant, etc) COULD be a judge.

Law, being a creation of man, is only as complex as man wishes it to be, unlike the physical world that doctors, engineers, chemistist, etc have to deal with.

I agree with E-Bell. It is one of those “terrible systems yet it happens to be superior to every other system” type problems.

No Name Guy decries the complicated legal system. No one likes that it is so complicated. But you need a complex system so you are not fitting square pegs into a round hole. Let’s take an example that involves mostly corporate squabbles so we don’t fuse in trial lawyer politics. How about patent law? Is patent law complex? You bet it is. It has to be. There is a delicate balancing of interests that must be achieved. Regrettably, that is going to require a high degree of complexity.

Wouldn’t judges from other professions instinctively favor their respective professions as well?

@Commenter Other legal systems train their judges separately from their attorneys, though it’s fair to worry that the result is judges that favor government bureaucrats. The other issue is wondering how we get there from here.

A shocking number of judges have no understanding of basic economics, even as they make rulings based on faulty economic premises.

There are judges, like Frank Easterbrook, who recognize the limits of litigation and the role of lawyers in society, and rule accordingly, but they’re few and far between.

It wasn’t uncommon throughout our history for Judges to have come from other professions besides being attorneys.

Judges can hire attorneys as their clerks to put their decisions into the proper framework and to help them with research.

It has come to the point in most States that a Governor won’t appoint someone to be a Judge unless the American Bar Association signs off on the appointment. It is a little too much like the fox guarding the hen house.

My gut tells me that non-lawyer Judges might be a little more unpredictable in their decision making and that bothers the legal profession who prefers everything to be neat and predictable.

“How about patent law? Is patent law complex? You bet it is. It has to be. There is a delicate balancing of interests that must be achieved. Regrettably, that is going to require a high degree of complexity.”

I’ll challenge you to demonstrate WHY patent law must be complex. Is it a new machine or physical process that’s unobvious? Yes? Patent. No? Not. A new chemical compound that treats a disease? Yes. Patent. No? Not. It doesn’t need to be more complex than that. When founded on principle, law is simple and easy. When trying to massage the law to achieve a desired outcome in every case, it becomes stupidly complex, which is where we are today (see tax code & criminal code for further examples of needless complexity). Examples abound in unneeded complexity in patent law: Business method, “One click”, etc.

What are these delicite balancing of interests you speak of Ron? Patents are to protect innovators for a limited time, period (see….sticking to principle, it’s easy). Is it an innovation in machine or process? Yes. Great, tell the public exactly how it works, and you can exclusively use it for a few years. Not an innovation? You’re S.O.L. Or, keep it to yourself (as Kodak did with Kodochrome, KFC with their blend of spices, Coke formula, etc) and it’s yours until someone figures it out on their own, but you’re out of luck once they do (a simple principle: If I can keep my secret, I can use it and profit from it, forever, or tell everyone, not have to worry about letting it slip, but only keep it for a limited time – it’s a business decision at that point).

Ted: I’d suggest a shocking number of judges & lawyers are ignorant of mathmatics, physics, chemistry, medicine and engineering principals as demonstrated every day in the annals of this very site and similar ones (and not just economics). They’re taught to come up with so called innovative ‘blah, blah, blah, sounds convincing’ lines of argument that don’t need a basis in physical reality. If the lawyer can sell the BS to a judge (similarily trained, hence similarily ignorant) they can win. (“Ignorant”: lacking in knowledge or training, lacking knowledge or information as to a particular subject or fact, uninformed; unaware).

I would argue that a legal system needs either law-educated judges or lots of law-educated lawyers, but not both. If the law is thorough enough to cover every possible situation (if such a thing were possible) then it’d be too complicated for the layman to understand it, but then it doesn’t seem like judges need to do anything other than read a very elaborate flowchart to determine the outcome of a case. If the law is considerably simpler then judges would need to interpret how it applies to a case, but the law might be simple enough that normal people understand it and can make their own arguments.
Putting it that way, it feels like we have the worst of both worlds – a legal system convoluted enough that no one can understand it without three years’ specialized education, yet which still fails to adequately address what people need it to.

Procedure is a protection until it becomes an end in itself. Associate Justice Ginsberg accepted the despicable behavior of the judge in the Skilling trial because he had choreographed, according to her standards, an acceptable Kabuki dance.

And there is the larger question of what constitutes evidence in our society. There never was any evidence that breast implants were particularly dangerous, but the controversy went on for at least 15 years. The same is true for the autism/vaccine theory.

“No Name Guy” is right, judges are ignorant in many fields. It is strange that law students do well on SAT type logic, but not on quantitative questions. Mrs. Clinton did well as a lawyer, but is as dumb as a turnip.

I have sat in chambers and heard lawyers-turned-judges state flat-out that “making sure the plaintiff’s attorney gets paid” is an actual, legitimate consideration in deciding a case. New York, mid-2000’s.

Ditto in Illinois.