NYTimes.com: Don't Listen to What the Man Says

[Frank Cross]

Well, I think it depends on the degree to which you find judges to be 
incompetent or immoral.
If this exception were created, there's no reason to think it would 
be widely or arbitrarily employed, I don't think,
because I believe the judiciary is fairly sensible and has no self 
interest in bothering with these disputes.
Judges would only make an exception in extreme cases of unfairness, 
perhaps like the infrequently invoked absurdity
rule in statutory interpretation.


At 02:03 PM 6/18/2007, David M. Wagner wrote:
>The officer who pulls you (and me) over represents the executive branch of
>the state or county government.  Executive branches have wide prosecutorial
>discretion.  At its extremes this raises rule-of-law issues, but normally it
>does not.
>
>Bowles presents a conflict between legislation (or judicial rulemaking
>undergirded by the Rules Enabling Act) and one ruling by one judge.  Prof.
>Finkelman saw it as a rule-of-law issue that this ruling, conceded by all
>parties to be erroneous, should prevail over legislation that is not even
>alleged to be ambiguous.
>
>I certainly see what's better, in this case, about allowing the judge's
>erroneous 17 to stand; what I don't see is why, as a general matter, the
>rule of law is better served by allowing judges to invent their own
>deadlines when the rules that Congress has promulgated set specific ones.
>
>
>David Wagner
>
>
> > -----Original Message-----
> > From: Frank Cross [mailto:crossf at mail.utexas.edu]
> > Sent: Monday, June 18, 2007 2:23 PM
> > To: daviwag at regent.edu; 'Paul Finkelman';
> > jfnbl at earthlink.com; conlawprof at lists.ucla.edu; s-gerber at onu.edu
> > Subject: RE: NYTimes.com: Don't Listen to What the Man Says
> >
> >
> > When driving, I have exceeded the speed limit.  This has been
> > detected by officers who pulled me over.
> > Sometimes, they just give me a warning rather than penalizing
> > me for my indisputable violation
> >
> > And yet, the rule of law has somehow survived
> >
> >
> > At 01:02 PM 6/18/2007, David M. Wagner wrote:
> > >
> > >I think I can save time by making the next few moves myself.
> > First, Prof.
> > >Finkelman says:
> > >
> > > >If we cannot rely
> > > > on the judge's orders then where does the rule of law lie?
> > > >
> > >
> > >Then I say: In the plainly written text of the Fed Rules of
> > Appellate
> > >Pro that says 14 days, not 17?
> > >
> > >SOMEONE ELSE: But that's just a written legal text.  Haven't
> > you read
> > >your Holmes?  "The law" is just a prediction about what a judge will
> > >do.  Here, given the equitable powers of federal judges, and given
> > >Harris Truck Lines and Thompson, the best prediction was
> > that 17 would stand.
> > >
> > >ME: But I don't buy into legal realism.  So I'm back to my
> > question: if
> > >the written law says 14, and it's not unconstitutional for
> > it to do so,
> > >why is it inconsistent with the rule of law (as opposed to, say,
> > >demanded by it) to adhere to 14 and not 17?
> > >
> > >YET ANOTHER: Bowles had an expectation interest in the doctrine of
> > >Harris Truck and Thompson, and so, at a minimum, these
> > opinions should
> > >have applied to him even if the Court was going to abandon them.
> > >
> > >ME: But if the Court can in effect say simultaneously that
> > decisions x
> > >and y were wrong, but we're going to apply them anyway
> > because we think
> > >that's the morally superior outcome, then where, indeed,
> > does the rule of law lie?
> > >
> > >Keeping in mind Prof. Schweber's observations about the
> > pardon power,
> > >perhaps the constitutional actor best situated in this case to do
> > >substantial justice constistent with the rule of law is the
> > Governor of
> > >Ohio....
> > >
> > >
> > >David M. Wagner
> > >Regent University School of Law
> > >
> > >_______________________________________________
> > >To post, send message to Conlawprof at lists.ucla.edu To subscribe,
> > >unsubscribe, change options, or get password, see
> > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > >Please note that messages sent to this large list cannot be
> > viewed as
> > >private.  Anyone can subscribe to the list and read messages
> > that are
> > >posted; people can read the Web archives; and list members
> > can (rightly
> > >or wrongly) forward the messages to others.
> >
> > Frank B. Cross
> > Herbert D. Kelleher Centennial Professor of Business Law
> > McCombs School of Business University of Texas CBA 5.202
> > (B6500) Austin, TX 78712-0212 512.471.5250
> >

Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250