Inquiry
Ilya Somin
isomin at gmu.edu
Sat Feb 6 17:57:21 PST 2010
I don't necessarily disagree with any of this. It's true, of course, that police can only do these things if judges approve. As a practical matter, however, often it's hard to contest them (not in the sense of hard to get a hearing, but in the sense of persuading the judge to take your word over the officer's).
JPs decisions also, of course, are often subject to reversal by appellate judges.
I don't have a strong opinion on whether JPs are judges. They certainly perform at least some judicial functions.
Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339
----- Original Message -----
From: "Finkelman, Paul <paul.finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu>
Date: Saturday, February 6, 2010 8:20 pm
Subject: RE: RE: RE: RE: Inquiry
> Police restrain and arrest subject to judicial superintendence.
> They don't fine people, in this country. They don't send you to
> prison or jail (except for the arrest which is then subject to
> judicial intervention) . It is actually quite easy to challenge
> traffic tickets; it just takes more time than the ticket it worth.
> Police can only arrest so that the judges can determine if the
> arrest holds up; if they do more they effectively do it outside
> the law. (does not mean it does nto happen). But that is not
> judging. Skip's incarceration was pretty short and the charges
> were dropped when cooler heads realized the cop was way over the
> top and that a judge would likely rule that way. Skip's arrest
> shows that sometime (often in some places?) the police exceed
> their authority but that does not make them judges.
>
> But, I see not point in belaboring the point. It you mean art. III
> judges then I suppose we would have to look at all the early art.
> III jduges to see if they were all lawyers; if you meant all
> people he are CALLED judge or justice, and hold court hearings,
> listen to arguments in adversary proceedings, sentence people, and
> can be overruled by other judges, then I as sure lots of people in
> the federal territories and other Fed. jurisdictions, like DC,
> have been judges without being lawyers.
>
> Finally, of course, officers in military courts serve as judges
> and have not always been (or even are always today) lawyers. A
> whole other class of federal judges who are not lawyers.
>
>
>
>
>
>
> *************************************************
> Paul Finkelman, Ph.D.
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
>
> 518-445-3386 (p)
> 518-445-3363 (f)
>
> paul.finkelman at albanylaw.edu
> www.paulfinkelman.com
> *************************************************
> ________________________________________
> From: Ilya Somin [isomin at gmu.edu]
> Sent: Saturday, February 06, 2010 8:00 PM
> To: Finkelman, Paul <paul.finkelman at albanylaw.edu>
> Cc: Aynes,Richard L; Bezanson, Randall P; 'Conlawprof at lists.ucla.edu'
> Subject: Re: RE: RE: RE: Inquiry
>
> I said some of these things, not all of them. As a practical
> matter, however, it is often difficult or impossible to
> effectively challenge fines issued by police officers. And police
> often can, in practice, imprison people for short periods of time,
> as the Henry Louis Gates case showed.
>
>
> Ilya Somin
> Associate Professor of Law
> Editor, Supreme Court Economic Review
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
>
>
> ----- Original Message -----
> From: "Finkelman, Paul <paul.finkelman at albanylaw.edu>"
> <Paul.Finkelman at albanylaw.edu>Date: Saturday, February 6, 2010
> 7:55 pm
> Subject: RE: RE: RE: Inquiry
>
> > can't fine --you have to pled guilty or be convicted even
> > technically for a parking ticket; can't issue warrants and can
> > only hold if they have a warrant (or some other process) from a
> > judge or until a judge acts.
> >
> >
> > *************************************************
> > Paul Finkelman, Ph.D.
> > President William McKinley Distinguished Professor of Law
> > Albany Law School
> > 80 New Scotland Avenue
> > Albany, NY 12208
> >
> > 518-445-3386 (p)
> > 518-445-3363 (f)
> >
> > paul.finkelman at albanylaw.edu
> > www.paulfinkelman.com
> > *************************************************
> > ________________________________________
> > From: Ilya Somin [isomin at gmu.edu]
> > Sent: Saturday, February 06, 2010 7:49 PM
> > To: Finkelman, Paul <paul.finkelman at albanylaw.edu>
> > Cc: Aynes,Richard L; Bezanson, Randall P;
> 'Conlawprof at lists.ucla.edu'> Subject: Re: RE: RE: Inquiry
> >
> > Police can do some of these things too, without necessarily being
> > judges.
> > Ilya Somin
> > Associate Professor of Law
> > Editor, Supreme Court Economic Review
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
> >
> >
> > ----- Original Message -----
> > From: "Finkelman, Paul <paul.finkelman at albanylaw.edu>"
> > <Paul.Finkelman at albanylaw.edu>Date: Saturday, February 6, 2010
> > 7:40 pm
> > Subject: RE: RE: Inquiry
> >
> > > They can fine; add points to our licence enough to prevent you
> > > from driving; send you to jail for short periods of time. In the
> > > 19th century they sent blacks back to the SOuth as fugitive
> > > slaves; If it looks like a duck (or a judge), walks like a duck,
> > > etc. It must be one.
> > >
> > >
> > > *************************************************
> > > Paul Finkelman, Ph.D.
> > > President William McKinley Distinguished Professor of Law
> > > Albany Law School
> > > 80 New Scotland Avenue
> > > Albany, NY 12208
> > >
> > > 518-445-3386 (p)
> > > 518-445-3363 (f)
> > >
> > > paul.finkelman at albanylaw.edu
> > > www.paulfinkelman.com
> > > *************************************************
> > > ________________________________________
> > > From: Ilya Somin [isomin at gmu.edu]
> > > Sent: Saturday, February 06, 2010 6:42 PM
> > > To: Finkelman, Paul <paul.finkelman at albanylaw.edu>
> > > Cc: Aynes,Richard L; Bezanson, Randall P;
> > 'Conlawprof at lists.ucla.edu'> Subject: Re: RE: Inquiry
> > >
> > > Thanks for the suggestion. Whether justices of the peace count as
> > > judges is, of course, a difficult judgment call.
> > >
> > > Ilya Somin
> > > Associate Professor of Law
> > > Editor, Supreme Court Economic Review
> > > George Mason University School of Law
> > > 3301 Fairfax Dr.
> > > Arlington, VA 22201
> > > ph: 703-993-8069
> > > fax: 703-993-8202
> > > e-mail: isomin at gmu.edu
> > > Website: http://mason.gmu.edu/~isomin/
> > > SSRN Page: http://ssrn.com/author=333339
> > >
> > >
> > > ----- Original Message -----
> > > From: "Finkelman, Paul <paul.finkelman at albanylaw.edu>"
> > > <Paul.Finkelman at albanylaw.edu>Date: Saturday, February 6, 2010
> > > 4:06 pm
> > > Subject: RE: Inquiry
> > >
> > > > William Marbury was appointed to a federal judgeship but of
> course> > > never served. He was not a lawyer. Some of the
> others appointed
> > > > with him were also non-lawyers, and they did get their
> > > > commissions. I guess maybe the original question was meant
> to be
> > > > about Art. III judges, but who knows.
> > > >
> > > > I suspect the place to look for non-lawyers would be in the
> > > > federal territories as well.
> > > >
> > > > The question also raises the issue of what constitutes a
> "lawyer."> > > I assume "passed the bar" is the text. (so for
> example, James
> > > > Madison was NOT a lawyer even though he had as good a legal
> > > > education as many lawyers).
> > > >
> > > >
> > > > *************************************************
> > > > Paul Finkelman, Ph.D.
> > > > President William McKinley Distinguished Professor of Law
> > > > Albany Law School
> > > > 80 New Scotland Avenue
> > > > Albany, NY 12208
> > > >
> > > > 518-445-3386 (p)
> > > > 518-445-3363 (f)
> > > >
> > > > paul.finkelman at albanylaw.edu
> > > > www.paulfinkelman.com
> > > > *************************************************
> > > > ________________________________________
> > > > From: conlawprof-bounces at lists.ucla.edu [conlawprof-
> > > > bounces at lists.ucla.edu] On Behalf Of Aynes,Richard L
> > > > [rlaynes at uakron.edu]Sent: Friday, February 05, 2010 4:40 PM
> > > > To: Bezanson, Randall P; 'Conlawprof at lists.ucla.edu'
> > > > Subject: RE: Inquiry
> > > >
> > > > Unfortunately, I don't think Miller would really "come close."
> > > > I'm not a huge fan of Miller's. But he came to be admitted
> to the
> > > > bar (1847, Kentucky) like many lawyers of his generation. His
> > > > father-in-law was a Judge and he appears to have studied law in
> > > > the Judge's office for two years before being admitted to
> the bar.
> > > > See generally Michael A. Ross's biography, Charles Fairman's
> > > > biography, and DAB, ANB, or any similar reference book.
> > > >
> > > > To be sure, there is some suggestion that Miller didn't have the
> > > > strong background & education in law that Justice Swayne did.
> > > > Miller tended to follow his own views of general principles
> > > > instead of specific precedents. But Miller was clearly a lawyer
> > > > admitted to the bar of Kentucky and then of Iowa and his
> education> > > was like Lincoln's and most of the lawyers of his
> generation.> > >
> > > >
> > > > Richard L. Aynes
> > > > U. of Akron
> > > >
> > > > -----Original Message-----
> > > > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > > > bounces at lists.ucla.edu] On Behalf Of Bezanson, Randall P
> > > > Sent: Friday, February 05, 2010 4:23 PM
> > > > To: 'Conlawprof at lists.ucla.edu'
> > > > Subject: FW: Inquiry
> > > >
> > > >
> > > >
> > > > -----Original Message-----
> > > > From: Bezanson, Randall P
> > > > Sent: Friday, February 05, 2010 3:22 PM
> > > > To: 'Ilya Somin'; 'conlawprof-bounces at lists.ucla.edu '
> > > > Subject: RE: Inquiry
> > > >
> > > > Samuel Miller was close. A doctor who also sat at the feet
> of a
> > > > lawyer and learned that trade too. Moved to Iowa and later
> became> > > a Supreme Court Justice picked by Lincoln.
> > > >
> > > > Randy Bezanson
> > > >
> > > > -----Original Message-----
> > > > From: On Behalf Of Ilya Somin
> > > > Sent: Friday, February 05, 2010 2:15 PM
> > > > To: Robert Bradley
> > > > Cc: conlawprof at lists.ucla.edu
> > > > Subject: Inquiry
> > > >
> > > > I was wondering if anyone on the list happens to know whether
> > > > there has ever been a federal judge who was not a lawyer.
> > > >
> > > > Thanks!
> > > >
> > > > Ilya Somin
> > > > Associate Professor of Law
> > > > Editor, Supreme Court Economic Review
> > > > George Mason University School of Law
> > > > 3301 Fairfax Dr.
> > > > Arlington, VA 22201
> > > > ph: 703-993-8069
> > > > fax: 703-993-8202
> > > > e-mail: isomin at gmu.edu
> > > > Website: http://mason.gmu.edu/~isomin/
> > > > SSRN Page: http://ssrn.com/author=333339
> > > >
> > > >
> > > >
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu
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> > > >
> > > > Please note that messages sent to this large list cannot be
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> > > >
> > > >
> > > > _______________________________________________
> > > > 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
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> > > >
> > > > _______________________________________________
> > > > 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
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> messages> > > that are posted; people can read the Web archives;
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> > > > members can (rightly or wrongly) forward the messages to others.
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