3 ms·

Some people would say that when a judge has to "stretch and squeeze" a law it's a failing of the lawmaking process. And if elected lawmakers produce a clear an

Some people would say that when a judge has to "stretch and squeeze" a law it's a failing of the lawmaking process. And if elected lawmakers produce a clear and unambiguous law with a manifestly unjust outcome, to get that fixed society should turn to lawmakers rather than judges.

throw0101a 4y ago
> Some people would say that when a judge has to "stretch and squeeze" a law it's a failing of the lawmaking process. Or they first arrive conclusion/decision they want for a particular case or topic, and then rationalize their decision (perhaps ignoring precedent) when they write their brief.
vintermann 4y ago
What do you mean, "has to"? The point is that judges have discretion. They might, or they might not. They don't have to do very much, even when on the wrong side of both elected politicians and justice. And sure, in an ideal world things would get fixed in the legislative branch. But can you blame anyone for going where so much of actual power is?
- michaelt 4y ago
  > What do you mean, "has to"? The point is that judges have discretion. Well, the justice system has a number of types of discretion: (1) Determining facts. Two first-hand accounts disagree, which do we find most believable? (2) Discretion granted by lawmakers. This person has been found guilty of X and the law calls for a prison sentence of 3 to 15 years depending on the facts of the case, how long should the sentence be? (3) Discretion in how to interpret the words of the law. For example, if a farmer grows wheat to feed to his own livestock, and it isn't sold and doesn't cross state lines, is that still "interstate commerce" because otherwise the farmer might have brought feed on on the national market? You're never going to remove (1) or (2) from the legal system, of course. But some people would say (3) is a question of politics which should be resolved through the political system - not through the justice system.
  - OrvalWintermute 4y ago
    I think you touch with (3) on the awesome and terrible power of a prosecutor, who execute the law. It brings up related two latin phrases and one in spanish de minimis non curat lex / de minimis non curat praetor [1] De los asuntos intrascendentes no se ocupa el magistrado On one side we could have the "hanging prosecutor" and the other extreme, a Chesa Boudin refusing to bring cases forward. Selecting prosecutors with the wisdom to know where the harsh application of the law is needed, and where electing not to bring forward a case is essential, or, a diversion to a non-criminal path is a must. Discretion & wisdom are essential. [1] https://en.wikipedia.org/wiki/De_minimis https://en.wikipedia.org/wiki/De_minimis

throw0101a 4y ago

> Some people would say that when a judge has to "stretch and squeeze" a law it's a failing of the lawmaking process. Or they first arrive conclusion/decision they want for a particular case or topic, and then rationalize their decision (perhaps ignoring precedent) when they write their brief.

vintermann 4y ago

What do you mean, "has to"? The point is that judges have discretion. They might, or they might not. They don't have to do very much, even when on the wrong side of both elected politicians and justice. And sure, in an ideal world things would get fixed in the legislative branch. But can you blame anyone for going where so much of actual power is?

michaelt 4y ago
> What do you mean, "has to"? The point is that judges have discretion. Well, the justice system has a number of types of discretion: (1) Determining facts. Two first-hand accounts disagree, which do we find most believable? (2) Discretion granted by lawmakers. This person has been found guilty of X and the law calls for a prison sentence of 3 to 15 years depending on the facts of the case, how long should the sentence be? (3) Discretion in how to interpret the words of the law. For example, if a farmer grows wheat to feed to his own livestock, and it isn't sold and doesn't cross state lines, is that still "interstate commerce" because otherwise the farmer might have brought feed on on the national market? You're never going to remove (1) or (2) from the legal system, of course. But some people would say (3) is a question of politics which should be resolved through the political system - not through the justice system.
- OrvalWintermute 4y ago
  I think you touch with (3) on the awesome and terrible power of a prosecutor, who execute the law. It brings up related two latin phrases and one in spanish de minimis non curat lex / de minimis non curat praetor [1] De los asuntos intrascendentes no se ocupa el magistrado On one side we could have the "hanging prosecutor" and the other extreme, a Chesa Boudin refusing to bring cases forward. Selecting prosecutors with the wisdom to know where the harsh application of the law is needed, and where electing not to bring forward a case is essential, or, a diversion to a non-criminal path is a must. Discretion & wisdom are essential. [1] https://en.wikipedia.org/wiki/De_minimis https://en.wikipedia.org/wiki/De_minimis