A confession: I agree with Chief Justice Roberts. For the most part, the law is, in fact, about calling balls and strikes.
Absolutely no one agrees with me on this who isn't currently serving on the bench. Nevertheless, I believe it's true. There is almost always a right answer.
The vast majority of the law gets no attention because its results are utterly self-evident. No one speeds through red lights because he thinks the law is indeterminate. Most people just obey these laws without question. The people who disobey them almost always plead out. The few that challenge their verdicts are shut down pretty much instantly; their cases are processed without much ado, and their appeals are easily dismissed.
That's about 99.99% of the law.
After that, it gets a little trickier. There might be a good-faith argument for ambiguity in the law. Nevertheless, usually these ambiguities are fairly easy to resolve. You look at a dictionary, at the rest of the statute, at common sense, at the legislative history (maybe). There's a reason most trial court decisions are upheld, that most appeals court decisions are upheld, that most appeals court decisions are unanimous, and that most SCOTUS cases aren't decided 5-4. It isn't all laziness and congeniality--it's that, usually, there's a pretty obvious right answer.
And, yes, the higher you go up the chain, the more ambiguous the cases get--because otherwise they wouldn't have gotten up the chain. But still, most of the job of a judge is calling balls and strikes. And there are some tough calls, but that doesn't mean there isn't a strike zone.
But in 2001, in a game between the Diamondbacks and the Giants, Cy Young winner Randy Johnson threw a fastball against Calvin Murray. And three fourths of the way to home plate, it struck, and killed, a pigeon.
Of course, in baseball, you can just call for another pitch. But imagine if the umpire didn't have the option. How would he call it? He'd have to calculate the speed and spin of the ball, and look at the batter's stance, and so on. And maybe, if he were a really good umpire, he could take a pretty good guess. And then the game could go on, and no one would be able to really prove him wrong, so that would be ok. It wouldn't be a disaster, and the guess would probably be reasonably fair. But it would be a guess.
And sometimes (very, very rarely), Congress hits a pigeon.
Subscribe to:
Post Comments (Atom)
2 comments:
Are the pitches in the baseball metaphor laws (so Congress hits pigeons), and the strike zone the Constitution? Or are the pitches "various factual situations" (so sometimes people do really weird stuff that hits pigeons) and the strike zone is "the law" so that if you pitch a strike, you, the plaintiff, win the case?
In general, there seems to be a difference between simplicity and predictability (e.g., DC residents don't get representation in Congress, if you make $X you don't qualify for the Earned Income Tax Credit, and if you have 1001 grams of marijuana you will be eligible for a higher sentence than if you had 999 grams) and conceptual coherence. Things that are in practice quite predictable may well be in theory incoherent, indeterminate, unjustifiable, etc.
The whole indeterminacy thing is quite tied up in the common law paradigm--with the creation of law through judicial opinions, which are supposed to have a level of logic and coherence within the broader legal system. The indeterminacy advocate would say that in most of these cases, when a judge creates common law, the judge can pretty much pick, for "political" reasons, where to assign rights and duties and so forth, and cover up the political nature of the decision by privileging one side or the other of the conventional, cliched legal concepts, e.g., liberty versus security. This whole framework doesn't translate perfectly to traffic court, but I don't think that's because the framework is wrong--it's just dealing with the development of doctrine in areas like constitutional law and tort law, rather than with the administration of technical regulations by traffic courts and the like.
Forget about whether it was a ball or a strike. What about the pigeon guts everywhere?
Post a Comment