Vulgar attitudinalism

[Gene Summerlin]

As someone who often finds himself laboring in the trenches at the State
trial court and intermediate appellate level in jurisdictions all across
the country, I very strongly disagree with Scott's characterization that
"most judges at those levels don't even pretend to concern themselves
with the law."  That's just silly.  These courts try desperately to
follow the law, though many of the lower level trial judges must
function without clerks (or only shared clerks) and are very dependent
upon the lawyers that appear before them to provide adequate trial
briefs.  If judges aren't citing cases when issuing two line decisions,
it's probably because none of the lawyers that appeared in the case
provided the court with any cases to cite.  

Gene Summerlin
Ogborn, Summerlin & Ogborn, P.C.
610 J Street, Suite 200
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (facsimile)
(402) 730-5344 (mobile)
gene at osolaw.com
www.osolaw.com

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Edlin
Sent: Tuesday, June 06, 2006 3:32 PM
To: Scott Gerber
Cc: Sanford Levinson; CONLAWPROF at lists.ucla.edu; Mark Graber
Subject: Re: Vulgar attitudinalism

Scott,

I am most familiar with legal practice in three states (and none is 
Ohio), but I have to say that it was not my experience when I litigated 
in state trial and appellate courts (to say nothing of federal district 
courts and courts of appeals) Those judges, 
particularly state trial judges, may not issue written opinions, but 
they expected to receive briefs and they expected the lawyers who 
appeared before them to cite and discuss the law (particularly 
precedent).  I like to think that this was not a regional anomaly.

Doug

Scott Gerber wrote:
> I agree with what Frank Cross says below.  I would simply add that 
> Supreme Court justices aren't they only judicial decisionmakers who 
> tend to exercise power, rather than reason.  Lower court judges do, 
> too.  It's especially bad at the lowest levels, such as state trial
and 
> intermediate appellate courts.  Most judges at those levels don't even

> pretend to concern themselves with the law--many don't cite cases in 
> their decisions.  At least U.S. Supreme Court justices cites cases, 
> albeit in a result-oriented fashion
> 
> Scott Gerber
> 
> 
> Frank Cross wrote [snip]:
> 
> I personally  tend to grant good faith to judicial decisionmakers and 
> assume that differences were legitimate differences of opinion about 
> the state of the law.  But the empirical regularities and a few pretty

> obvious violations of professed legal interpretive methodologies by
the 
> justices have caused me to lose my presumption.
> 
> --------------------------------------
> 
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty/gerber/
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-- 
Douglas E. Edlin
Assistant Professor
Department of Political Science
Dickinson College
P.O. Box 1773
Carlisle, Pennsylvania 17013
717.245.1388
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