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Allan Axelrod
Mon, 8 Dec 1997 10:30:51 -0500
Taylor v. Dickens


On Wed, 3 Dec 1997, Paul Michalik wrote:

The point is that the US system is adapted to inherent uncertainty in a way in which the english system is not (which is not to say that it could not be so adapted). the US accepts the palm tree principle, and courts have adjusted to deal, as palm tree legislators, with the resulting powers and resulting uncertainties. It is far from pathological to respect certainty and to fear change to an unconstitutional tyranny of the bewigged ones. It is far from pathological not to want to follow the US lead into the indignities of direct election of judicial officers and campaigns for office based on who has been tougher on criminals - all of which are a relatively natural (if not inevitable) result of seeking a mandate for judicial legislation.


i had to look something up before responding to those interesting observations:

Mr Michalik's reference to the excitement of american electoral politics in re our activist judiciary and the criminal law perhaps derives from an instructive episode in california a few years back. in that state, death is the statutory penalty for a number of offenses --- but in case after case where lower courts had pronounced that sentence, the state supreme court reversed on some or another finding that the proceedings below had been defective: for years, error was ALWAYS found in capital cases

many members of the public were outraged --- some at the outcomes and others also disturbed by the 'activism' --- and a campaign begun to recall the california state supreme court judges [in a number of our states --- mostly in the west and middle-west, there are constitutional provisions for a recall popular vote: 'shall judge X retain office?'] and several of the offending judges were indeed recalled -- at least one went on to a constructive academic career [inter alia, Jurisprudence] with the university of california

there were members of the bar who were in favor of the recall, and analyses published of how specious were some of the grounds asserted by the court in its death sentence reversals, from which analyses it was reluctantly concluded that the court had abandoned its traditional and proper role

in this the lawyers were poorly informed, at least as to tradition, for the court in its very speciousness was adhering to a solid precedent for speciousness in capital cases, the best sort of precedent for those of us in the colonies

there was for example a well-known english case of a man acquitted of the capital offense of stealing a pair of stockings on the ground that the stockings stolen were odd ones, and another acquitted of stealing a duck, when the duck turned out to be a drake [reporter's note to Rex v Holloway, 171 E.R. 1131n [1823]

for an account of the extremes to which the english judiciary --- several centuries back -- went to avoid infliction of the death penalty for 'aggravated larceny' 'shop-lifting' and the like

see Hall Theft, Law and Society 2d ed 1952 pp 118-127

the book, incidentally, generalizes that administrative nullification [by judges, juries, prosecutors and police] is a frequent or even normal element of the process by which law in anglo-american jurisdictions adapts to social change

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