Sunday, September 5, 2010

IntLawGrrls

IntLawGrrls

Umpire strikes out

Posted: 05 Sep 2010 03:01 AM PDT

In the hearing that led to her installation as an Associate Justice of the U.S. Supreme Court, Elena Kagan (at left) took issue with the remarks of Chief Justice John G. Roberts Jr. (at right), who said during his own confirmation hearing:

'Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.'
Kagan criticized Roberts' umpire metaphor on the ground that it
'might suggest to some people that law is a kind of robotic enterprise. That there's a kind of automatic quality to it. That it's easy. That we just sort of stand there, and we go "ball" and "strike" and everything is clear cut, and there's no judgment in the process. And I do think that that's not right, and that it's especially not right at the Supreme Court level, where the hardest cases go.'
Justice Sonia Sotomayor (left) also rejected the analogy in her confirmation hearing last year.
Legal commentators have noted the provenance of the umpire analogy -- mostly, one dismissed by courts as inappropriate. For example:
► In State v. Crittenden, La. Ann. 448 (1886), reviewing an appeal of a criminal conviction, Louisiana Supreme Court Justice Hicks wrote that "[a] trial is not a mere [game] between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them." ► In 1910, the Ohio Court of Common Pleas declared that "[a] judge presiding at the trial of a jury case is not a mere umpire of a game of ball, to call balls and strikes." Morrison & Snodgrass Co., v. Hazen, 22 Ohio Dec. 772.
Indeed, when judges have invoked the umpire analogy, is has usually been as a model for what trial judges should avoid, not for what Supreme Court Justices should do.
Was now-Justice Kagan perhaps channeling Earl Warren in his younger days?
Nearly 2 decades before he would become Chief Justice of the United States, then-prosecutor Warren (below right) wrote, in "Organized Crime and Unorganized Law Enforcement," California Journal of Development, June 1934, at 18 (h/t Jed Shugerman):

'It has been my observation over a period of years that when a judge assumes the role of a baseball umpire, merely calling balls and strikes, . . . that justice is seldom done in important cases, but that on the other hand, when the judge assumes the responsibility placed on him by law . . . justice is usually accomplished.'

Pound-foolish complaint

Posted: 05 Sep 2010 01:24 AM PDT

Enough with the false frugality.
This Labor Day weekend ends a summer that was long, hot,* and dismal. Economic news? Bad to worse. So too analyses of what's to come.
Having predicted downturn long before many in the mainstream media, this 'Grrl is hardly a Pollyanna on fiscal policy. Nonetheless, I can't wait for a theme running through much commentary to run its course.
The theme cropped up again a few days ago, in Maureen Dowd's kvetch about a White House makeover. Key quote among many swipes:

The recession redo, paid for by the nonprofit White House Historical Association, was the latest tone-deaf move by a White House that was supposed to excel at connection and communication. Message: I care, but not enough to stop the fancy vacations and posh renovations.
As we've posted in another context, concern about poor Presidential communication is well founded.
Concern about spending, not so much.
As any student of ECON 101 well knows, underdemand means oversupply. Not a good thing. If no one buys, sellers lose out. Stores close and employees are out of work.
Recovery requies that persons who can – CEOs, persons who saved well during the last bubble, and yes, the 1st Family – should spend. New carpets and remade couches. R&R at the Vineyard, and the Gulf coast. Spain, even.
Stirring of the economic pot is what's in order – not a populist tune that may sound good but is, in the end, unsound.


　
* So it's reported, from reaches of the United States outside the zone of cold coastal fog that cloaked the San Francisco Bay Area lo! these many months.

On September 5

Posted: 05 Sep 2010 12:03 AM PDT

On this day in ...

... 1915 (95 years ago today), as trench warfare dragged on across Europe, about 40 delegates from 11 countries opened a 6-day meeting, known as the Zimmerwald Conference in recognition of the Swiss municipality where it was held. Among those attending this 1st First International Socialist Conference was the exiled Russians Vladimir Lenin and Leon Trotsky. The meeting would end on September 11 with a manifesto that demanded an immediate end to World War I:

[W]orkers within each country should try by any means necessary to convert the current capitalist struggle into a more enlightened one: an international workers' revolution or civil war 'between the classes' that would spread throughout Europe, and eventually the world.

It further praised certain comrades, among them Rosa Luxemburg (above, near left), Clara Zetkin (far left), and Louise Saumoneau. (credit for 1911 photo)


(Prior September 5 posts are here, here, and here.)

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