Friday, September 15, 2017

Vox Popoli: Justice's casino

This is why it is a fool's game to assume that any legal case is a certainty of any kind, no matter what the law says, and no matter how much legal precedent you can cite.

Recently retired federal appeals court Judge Richard Posner said he rarely looked to legal rules when deciding cases and often sought to skirt Supreme Court precedent.

"I pay very little attention to legal rules, statutes, constitutional provisions," Posner told the New York Times in an interview published Monday. "A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?"

When confronting a case with some form of legal obstacle in the way, the former 7th Circuit Court of Appeals judge said he would look to circumvent whatever prevented him from reaching his desired result.

Any good lawyer will tell you that the law is whatever the presiding judge tells you it is. I was once the only witness in a civil case in which the documentary evidence precisely supported my testimony. It was as black-and-white, as open-and-shut, as a case could be. There was simply no way around the obvious conclusion. None at all.

But instead of simply deciding for the plaintiff, the judge offered a settlement of a coin toss. Heads and the plaintiff won the total amount sought. Tails and he only won half. Knowing that he had no case, the defendant's attorney accepted the settlement and won the coin toss. The plaintiff received only half of what he was rightfully owed.

And that is why I have never had one single iota of confidence in the U.S. legal system ever since. Nothing that I have seen happen in it ever since has surprised me. Literally anything can happen; justice has nothing to do with it. The Italians call the legal system "un casino" and I think they are entirely right to do so.