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Judges
Supreme Court Justice Felix Frankfurter once observed that the ideal judge must possess three qualities--all of which are disinterestedness. But as David Pannick points out in this irreverent, informative, and highly entertaining volume, not all judges live up to Justice Frankfurter's
standard. One American judge, when asked by a lawyer of Japanese descent for more time to prepare a case, shot back, "How much time did you give us at Pearl Harbor?" Others go to the opposite extreme, uninterestedness, and fall asleep during the trial, or knit, or read the paper. One English judge
fell asleep so often that barristers would drop huge law books to the floor to wake him up again.
Full of such illustrative examples and anecdotes, Judges offers a revealing portrait of the judicial systems of America and England. It is a vastly amusing book, but it has a serious purpose--to make us think more critically about officials whom we elect for life , who have the power to strike down
laws, and whose mistakes, even if later reversed, can have a devastating impact on the people involved. How are judges selected? Is it wise to select supposedly impartial judges from the ranks of lawyers, who spend their careers in highly partisan and heated argument for one side of an issue? Should
a judge who has spent his entire career in corporate law be allowed to hear cases in criminal court, as sometimes happens? (One English judge, appointed to the bench after a successful career in libel practice, claimed it was "fun trying Chancery matters of which I had no experience at all"--but how
the litigants felt is another matter.) How are judges disciplined when they misbehave? And what changes are needed in this important but hitherto neglected area of government?
Judges have a weighty responsibility; they repeatedly do what most of us seek to make decisions. These decisions can have serious a man may go to prison, a women may lose her house or the custody of her children, or an entire segment of the population may lose their civil
rights. Pannick's light touch does not deflect from this book's serious aim--to remind people that it is vital to subject judges to the same critical standards to which the other branches of government are held.
standard. One American judge, when asked by a lawyer of Japanese descent for more time to prepare a case, shot back, "How much time did you give us at Pearl Harbor?" Others go to the opposite extreme, uninterestedness, and fall asleep during the trial, or knit, or read the paper. One English judge
fell asleep so often that barristers would drop huge law books to the floor to wake him up again.
Full of such illustrative examples and anecdotes, Judges offers a revealing portrait of the judicial systems of America and England. It is a vastly amusing book, but it has a serious purpose--to make us think more critically about officials whom we elect for life , who have the power to strike down
laws, and whose mistakes, even if later reversed, can have a devastating impact on the people involved. How are judges selected? Is it wise to select supposedly impartial judges from the ranks of lawyers, who spend their careers in highly partisan and heated argument for one side of an issue? Should
a judge who has spent his entire career in corporate law be allowed to hear cases in criminal court, as sometimes happens? (One English judge, appointed to the bench after a successful career in libel practice, claimed it was "fun trying Chancery matters of which I had no experience at all"--but how
the litigants felt is another matter.) How are judges disciplined when they misbehave? And what changes are needed in this important but hitherto neglected area of government?
Judges have a weighty responsibility; they repeatedly do what most of us seek to make decisions. These decisions can have serious a man may go to prison, a women may lose her house or the custody of her children, or an entire segment of the population may lose their civil
rights. Pannick's light touch does not deflect from this book's serious aim--to remind people that it is vital to subject judges to the same critical standards to which the other branches of government are held.
- GenresLaw
264 pages, Hardcover
First published February 18, 1988
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April 9, 2019
A well-researched book about judges written by an English barrister. I read it because I face judges almost every working day. There are insights that may help me deal with them, and quotes which I may be able to find use for in my pleadings. Like:
“No judge can be expected always to reach the right answer. To err is human and judges are not divine…Since judges are capable of misinterpreting the law after hearing and considering detailed argument, the rest of us—lawyers as well as laymen—can be excused for our own errors of analysis. The unpredictable nature of litigation should be more widely understood….” (p.202)
“judicial foibles are of interest and importance because they reveal the reality behind the mask of objectivity presented in court. No one who has had any dealings with the law would dispute that the personality and interests of the judge vitally affect the way in which he decides the case, as to style and as to substance. It is a dangerous ‘myth that, merely by putting on a …robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.’” (p.26)
“Aristotle was aware, many centuries earlier, that for those who decide cases ‘love, hate or personal interest is often involved, so that they are no longer capable of discerning the truth adequately, their judgment being obscured by their own pleasure or pain.’…Judges are necessarily ‘subject to human limitations….The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by…’….If one were to define ‘bias’ and ‘partiality’ to mean ‘the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will.” (p.44)
The qualities desired of a judge can be simply stated: ‘that he be a good one and that he be thought to be so.’ Such credentials are not easily acquired. The judge needs to have ‘the strength to put an end to injustice’ and ‘the faculties that are demanded of the historian and the philosopher and the prophet.’
“The judge is expected to display such physical and mental tricks while watching an unpredictable daily drama with an ever-changing cast of characters. All human life is on display in the courtroom. The most inquisitive of spectators will find satisfaction in the presentation throughout the season of the personal conduct, thoughts, and motives of all manner of people who are unfortunate enough to find themselves involved with the law.
“The drama which demands such close judicial attention will have suspense: as Mr Justice Megarry said in a 1968 judgement, ‘the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained…’ There is the cathartic tragedy of villains receiving their just deserts. There is rich comedy and there is the farce of litigants and lawyers chasing each other through a series of connecting rooms, trying to avoid the banana skins liberally placed under them by Parliament, the appeal courts, and fate.
“Three distinct questions compete for the attention of the judge: what are the facts, what does the law require or permit, and is the law fair? The factual questions are important but often uninteresting. The moral questions are interesting but rarely of practical importance for judges whose job it is to apply the law (though Earl Warren, Chief Justice of the US Supreme Court 1953-69, would ask counsel acting for the State who cited supporting precedent, ‘Yes, yes—but were you fair?’). Questions about the content of the law are frequently both interesting and important. On their answer may depend people’s livelihood, reputation, or future well-being.
“How judges should decide hard cases in which the law is unclear has troubled philosophers since biblical times. In Exodus we are told that the ordinary judges decided the easy cases, ‘but the hard cases they brought unto Moses.’ Since then a variety of theories have been advanced, some more sensible than others, to explain where the limits of the law lie. Natural lawyers argue that the law is to be defined by reference to moral criteria. The Realist school asserts that the law depends on what the judge had for breakfast. One of the proponents of the new, but influential, school of economic lawyers, Richard Posner, is a judge of the US Court of Appeals. In 1986 Judge Posner, for the majority of his court, held that in deciding whether to grant an interlocutory (or preliminary) injunction pending the trial of a civil action, a court should use ‘the help of a simple formula: grant the preliminary injunction if but only if P x Hp > (I - P) x Hd, or, if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error (that the plaintiff, in other words, will win the trial), exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error…’
“Judge Swygert, dissenting, urged that ‘judges asked to issue a preliminary injunction must, in large part, rely on their own judgement, not on mathematical quanta…’” (pp.199 - 201)
“Becoming involved in a lawsuit is like ‘being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains.’ (Charles Dickens, Bleak House). Hundreds of thousands of people are exposed to such torture each year, some of them actually choosing to initiate the process. They invariably find the experience painful, protracted, and expensive. When it has run its course, they often realize that it was futile. Yet there remains a queue of victims impatient for their turn.” (p.29)
“’The tale I have to tell is unflattering of the higher judiciary. It is an account of how the judges invented a rule based upon conceptual misunderstanding; of their determination to use the English language so strangely that they spoke what by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law; and of their immobility on the subject, carried to the extent of subverting an Act of Parliament designed to put them straight.’” (p.125, citing Professor Glanville Williams)
“The most important element of judicial mysticism is not the fancy dress worn by judges but the language in which judges, like other lawyers, communicate. Lawyers have, as Jonathan Swift observed, ‘a peculiar cant and jargon of their own, that no other mortal can understand.’ They take care to ensure that all legal business is conducted in this language ‘so that it will take thirty years to decide whether the field left me by my ancestors for six generations belongs to me or to a stranger three hundred miles off.’
“This language, condemned by Jeremy Bentham as ‘lawyers’ cant’ and ‘flash language,’ serves various purposes, none of them in the public interest. It unites lawyers, distinguishing them from laymen. It makes the law mysterious and incomprehensible to those laymen, thus ensuring a steady supply of work for lawyers who are needed to interpret the language they have invented. The language of the law fosters the illusion that legal problems are remediable only by the application of the medicine of the specialist. Only a lawyer can resolve the complexities of the problem…Legal language also enshrouds the law, hiding it from the public. The idiom of the law leads to public ignorance of the content of the law (which paradoxically refuses to recognize ignorance of the law as a defence). It provokes the indifference of too many laymen towards the law and the contempt of so many litigants for a system which they do not understand. Legal jargon also helps to make sound acceptable what in plain terms would be seen as outrageous: ‘In law, what plea so tainted and corrupt/But, being season’d with a gracious voice,/Obscures the show of evil?’ (William Shakespeare, The Merchant of Venice) (pp.147-148)
“There are several distinguishing features of legal language. First, there is the extraordinary prolixity of legal speech. Lawyers are, as Swift explained, ‘a society of men…bred up from their youth in the art of proving by words multiplied for the purpose that white is black, and black is white, according as they are paid.’…Secondly, there is the frequent reliance on archaic forms, such as ‘aforesaid, heretofore,’ and ‘thenceforth.’ Thirdly, there is the common use of Latinisms, from ‘ab innate’ to ‘ex post facto,’ reducing the litigant, ‘ex part,’ to ‘in forma paupers.’ Fourthly, legal language delights in unnecessary repetition: ‘the truth, the whole truth, and nothing but the truth…to have and to hold…his last will and testament..null and void.’ Fifthly, it revels in cliches that are generally avoided in ordinary speech: ‘rack and ruin…part and parcel…safe and sound.’ Sixthly, lawyers use language as a protective shell, designed to insulate them from the consequences of their words and actions: ‘without prejudice..in my submission…it would seem…the alleged…if any.’ Seventhly, the language of the law welcomes the euphemism. It uses it for a variety of purposes including ceremony, obfuscation, and the avoidance of what might otherwise be distasteful.
“All these linguistic devices help the lawyer to communicate in a tongue that cannot be understood by others. The legal profession is well aware that, in Bentham’s words. ‘the power of the lawyer is in the uncertainty of the law.’ None of this might matter except that, as an American judge, Justice Johnson, once pointed out, the vital interest of party to legal proceedings ‘may depend upon a comma.’ (pp. 151-152)
“No judge can be expected always to reach the right answer. To err is human and judges are not divine…Since judges are capable of misinterpreting the law after hearing and considering detailed argument, the rest of us—lawyers as well as laymen—can be excused for our own errors of analysis. The unpredictable nature of litigation should be more widely understood….” (p.202)
“judicial foibles are of interest and importance because they reveal the reality behind the mask of objectivity presented in court. No one who has had any dealings with the law would dispute that the personality and interests of the judge vitally affect the way in which he decides the case, as to style and as to substance. It is a dangerous ‘myth that, merely by putting on a …robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.’” (p.26)
“Aristotle was aware, many centuries earlier, that for those who decide cases ‘love, hate or personal interest is often involved, so that they are no longer capable of discerning the truth adequately, their judgment being obscured by their own pleasure or pain.’…Judges are necessarily ‘subject to human limitations….The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by…’….If one were to define ‘bias’ and ‘partiality’ to mean ‘the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will.” (p.44)
The qualities desired of a judge can be simply stated: ‘that he be a good one and that he be thought to be so.’ Such credentials are not easily acquired. The judge needs to have ‘the strength to put an end to injustice’ and ‘the faculties that are demanded of the historian and the philosopher and the prophet.’
“The judge is expected to display such physical and mental tricks while watching an unpredictable daily drama with an ever-changing cast of characters. All human life is on display in the courtroom. The most inquisitive of spectators will find satisfaction in the presentation throughout the season of the personal conduct, thoughts, and motives of all manner of people who are unfortunate enough to find themselves involved with the law.
“The drama which demands such close judicial attention will have suspense: as Mr Justice Megarry said in a 1968 judgement, ‘the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained…’ There is the cathartic tragedy of villains receiving their just deserts. There is rich comedy and there is the farce of litigants and lawyers chasing each other through a series of connecting rooms, trying to avoid the banana skins liberally placed under them by Parliament, the appeal courts, and fate.
“Three distinct questions compete for the attention of the judge: what are the facts, what does the law require or permit, and is the law fair? The factual questions are important but often uninteresting. The moral questions are interesting but rarely of practical importance for judges whose job it is to apply the law (though Earl Warren, Chief Justice of the US Supreme Court 1953-69, would ask counsel acting for the State who cited supporting precedent, ‘Yes, yes—but were you fair?’). Questions about the content of the law are frequently both interesting and important. On their answer may depend people’s livelihood, reputation, or future well-being.
“How judges should decide hard cases in which the law is unclear has troubled philosophers since biblical times. In Exodus we are told that the ordinary judges decided the easy cases, ‘but the hard cases they brought unto Moses.’ Since then a variety of theories have been advanced, some more sensible than others, to explain where the limits of the law lie. Natural lawyers argue that the law is to be defined by reference to moral criteria. The Realist school asserts that the law depends on what the judge had for breakfast. One of the proponents of the new, but influential, school of economic lawyers, Richard Posner, is a judge of the US Court of Appeals. In 1986 Judge Posner, for the majority of his court, held that in deciding whether to grant an interlocutory (or preliminary) injunction pending the trial of a civil action, a court should use ‘the help of a simple formula: grant the preliminary injunction if but only if P x Hp > (I - P) x Hd, or, if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error (that the plaintiff, in other words, will win the trial), exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error…’
“Judge Swygert, dissenting, urged that ‘judges asked to issue a preliminary injunction must, in large part, rely on their own judgement, not on mathematical quanta…’” (pp.199 - 201)
“Becoming involved in a lawsuit is like ‘being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains.’ (Charles Dickens, Bleak House). Hundreds of thousands of people are exposed to such torture each year, some of them actually choosing to initiate the process. They invariably find the experience painful, protracted, and expensive. When it has run its course, they often realize that it was futile. Yet there remains a queue of victims impatient for their turn.” (p.29)
“’The tale I have to tell is unflattering of the higher judiciary. It is an account of how the judges invented a rule based upon conceptual misunderstanding; of their determination to use the English language so strangely that they spoke what by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law; and of their immobility on the subject, carried to the extent of subverting an Act of Parliament designed to put them straight.’” (p.125, citing Professor Glanville Williams)
“The most important element of judicial mysticism is not the fancy dress worn by judges but the language in which judges, like other lawyers, communicate. Lawyers have, as Jonathan Swift observed, ‘a peculiar cant and jargon of their own, that no other mortal can understand.’ They take care to ensure that all legal business is conducted in this language ‘so that it will take thirty years to decide whether the field left me by my ancestors for six generations belongs to me or to a stranger three hundred miles off.’
“This language, condemned by Jeremy Bentham as ‘lawyers’ cant’ and ‘flash language,’ serves various purposes, none of them in the public interest. It unites lawyers, distinguishing them from laymen. It makes the law mysterious and incomprehensible to those laymen, thus ensuring a steady supply of work for lawyers who are needed to interpret the language they have invented. The language of the law fosters the illusion that legal problems are remediable only by the application of the medicine of the specialist. Only a lawyer can resolve the complexities of the problem…Legal language also enshrouds the law, hiding it from the public. The idiom of the law leads to public ignorance of the content of the law (which paradoxically refuses to recognize ignorance of the law as a defence). It provokes the indifference of too many laymen towards the law and the contempt of so many litigants for a system which they do not understand. Legal jargon also helps to make sound acceptable what in plain terms would be seen as outrageous: ‘In law, what plea so tainted and corrupt/But, being season’d with a gracious voice,/Obscures the show of evil?’ (William Shakespeare, The Merchant of Venice) (pp.147-148)
“There are several distinguishing features of legal language. First, there is the extraordinary prolixity of legal speech. Lawyers are, as Swift explained, ‘a society of men…bred up from their youth in the art of proving by words multiplied for the purpose that white is black, and black is white, according as they are paid.’…Secondly, there is the frequent reliance on archaic forms, such as ‘aforesaid, heretofore,’ and ‘thenceforth.’ Thirdly, there is the common use of Latinisms, from ‘ab innate’ to ‘ex post facto,’ reducing the litigant, ‘ex part,’ to ‘in forma paupers.’ Fourthly, legal language delights in unnecessary repetition: ‘the truth, the whole truth, and nothing but the truth…to have and to hold…his last will and testament..null and void.’ Fifthly, it revels in cliches that are generally avoided in ordinary speech: ‘rack and ruin…part and parcel…safe and sound.’ Sixthly, lawyers use language as a protective shell, designed to insulate them from the consequences of their words and actions: ‘without prejudice..in my submission…it would seem…the alleged…if any.’ Seventhly, the language of the law welcomes the euphemism. It uses it for a variety of purposes including ceremony, obfuscation, and the avoidance of what might otherwise be distasteful.
“All these linguistic devices help the lawyer to communicate in a tongue that cannot be understood by others. The legal profession is well aware that, in Bentham’s words. ‘the power of the lawyer is in the uncertainty of the law.’ None of this might matter except that, as an American judge, Justice Johnson, once pointed out, the vital interest of party to legal proceedings ‘may depend upon a comma.’ (pp. 151-152)
March 17, 2019
This book seeks to examine some of the conventions about conventions about the English judiciary and give some critical analysis on some points. To this extent, there are comparisons to the American courts and their systems, some unfortunate moments that have occurred, and some comments on current practice and recommendations for change.
It is instructive to reflect on the some of the topics given that the book was published over 20 years ago in 1987. Some topics have never finally been settled – see for example, the mention and short points made regarding dissent on page 20 and a recent speech by Chief Justice Kiefel titled “Judicial Courage and the Decorum of Dissent” – The Atkin Lecture – given at the Supreme Court of Queensland, 28 November 2017
(http://www.hcourt.gov.au/assets/publi...). Some issues remain present and could perhaps be said to have been exacerbated - compare for example chapter 2 on Expertise and Bias and chapter 2 (The Wild West: The Magistrates’ Court) in The Secret Barrister: Stories of the Law and How It's Broken by The Secret Barrister.* Other points have move on – some major court proceedings by English judiciary (e.g. the Brexit appeal in the UK Supreme Court) and other matters overseas (see for example the High Court of Australia releasing audio visual materials of full court appeals and George Pell’s sentencing in Australia being broadcast). One should not merely uncritically accept all points made, but should use them as a started point to critically consider what works and what reforms may be needed for this important institute in the public interest
Despite the different to the local Australian jurisdiction and the length of time since this book was published, this work is a useful addition to the literature on the subject.
*A comparison of the state of the law more generally with The Secret Barrister: Stories of the Law and How It's Broken by The Secret Barrister is both enlightening as to the similar strengths throughout the years and, to a degree, horrifying in how some things have developed.
It is instructive to reflect on the some of the topics given that the book was published over 20 years ago in 1987. Some topics have never finally been settled – see for example, the mention and short points made regarding dissent on page 20 and a recent speech by Chief Justice Kiefel titled “Judicial Courage and the Decorum of Dissent” – The Atkin Lecture – given at the Supreme Court of Queensland, 28 November 2017
(http://www.hcourt.gov.au/assets/publi...). Some issues remain present and could perhaps be said to have been exacerbated - compare for example chapter 2 on Expertise and Bias and chapter 2 (The Wild West: The Magistrates’ Court) in The Secret Barrister: Stories of the Law and How It's Broken by The Secret Barrister.* Other points have move on – some major court proceedings by English judiciary (e.g. the Brexit appeal in the UK Supreme Court) and other matters overseas (see for example the High Court of Australia releasing audio visual materials of full court appeals and George Pell’s sentencing in Australia being broadcast). One should not merely uncritically accept all points made, but should use them as a started point to critically consider what works and what reforms may be needed for this important institute in the public interest
Despite the different to the local Australian jurisdiction and the length of time since this book was published, this work is a useful addition to the literature on the subject.
*A comparison of the state of the law more generally with The Secret Barrister: Stories of the Law and How It's Broken by The Secret Barrister is both enlightening as to the similar strengths throughout the years and, to a degree, horrifying in how some things have developed.
February 26, 2015
It's very bets book
Displaying 1 - 3 of 3 reviews