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On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity
Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.
Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.
One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.
Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.
Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.
While math like 2+2=4 is generally agreed upon, you might be surprised at the level of disagreement within a given math department. It's probably lower than the law department, but it's not zero. Specific examples would be the Axiom of Choice (either accepting it or not leads to unintuitive results like Banach-Tarski) or opinions on computer-assisted proofs like the Four Color Theorem, although I haven't been in a math department class since ChatGPT came out. Even the analysis vs. topology folks come to somewhat different conclusions based on their chosen axioms.
I guess my point is we could have a legal system that is more mathy. Pointing out UC which has probably been the most conservative major law school has multiple different legal theory branches is not mathy. Especially when it applies to judicial philosophy and not law design.
I laugh when people mostly on the right complain about the length of bills. I think a clear bill would include a broad “thing” but then spend a lot of words describing all the specific applications.
The current thing is birthright citizenship. The designers of the amendment could have spent the time properly defining why they meant by “jurisdiction”. You could have the amendment that’s what it is now in the list of amendments to keep it short for students to read and then have pages of footnotes defining jurisdiction.
Instead you have basically just boosted the power of judges. Each side on the birthright side in my opinion has correct arguments. So who decides? You basically just made judges into legislators. It’s a policy decision.
From an ethical perspective I believe our law schools have failed us. They shouldn’t have theorists and debates. Words need to mean something and the schools should be emphasizing that. Debating things is of course fun and academics enjoy that process. But they could be teaching future lawyers to interpret words as written and since lawyers write most laws teaching them to write laws that are clear and limit a need to be interpretive.
You can have a legal system that is far more like 2+2. Common law to me seems like hogwash. If you want a common law to be law then write it down on a piece of paper and pass that law.
I understand how Sunstein enjoyed viewpoint diversity in law. I don’t want viewpoint diversity in law. I want something where if I read a law passed by congress I know the rules I need to follow. Viewpoint diversity just means law becomes another form of politics.
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