For love of the game
At a fundamental level, a judge is best understood as a consumer of content, or possibly a gamer.
At least, that was what Judge Richard Posner concluded in What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1 (1993).
Despite the title, Posner's essay underlines just how unusual federal judges are. The Constitution and federal law does not make it easy for judges to do “The Same Thing[s] Everybody Else Does.”
In the United States, federal judicial office eliminates most ordinary human incentives. Judges are almost never fired, almost never promoted, and almost never hired out. They can’t get a pay cut, can’t get bonuses or incentives, and can’t take much outside work.
At a personal level, judges can’t choose what cases they hear, who they work with, or, once they’ve taken their commission, where they work. Once they’re commissioned, they're there for life.
Federal judges have a comfortable salary, especially in more affordable parts of the country. (The same salary goes a lot further in West Virginia than it does in the Northern District of California.) But money isn’t the main incentive.
So why do they do it? Well, status, mainly.
Judges take the job for the general esteem and the personal deference it commands. Those are unusual goods in a republican society. Beyond the language—the robes, the chambers, the “marble palace,” all very High Church—judges possess inherent powers to command, sanction, and detain those before them. With that kind of power, deference comes naturally.
Here’s the problem: No matter what they do, judges get the same amount of deference. Good judges get deference. Bad judges get deference. Hard-working judges, lazy judges, kind judges, cruel judges. They all get it.
It’s not just deference, either. It’s the same for esteem, respect, status. No matter how much or how little work you put in, the social returns stay the same. In fact, Posner suggests, the returns might be worse for the hard workers:
“Employers like a Stakhanovite,” Posner says, “fellow employees do not.” But given that federal judges have no “employer” in the ordinary sense of the word—no one to fire them, promote them, dock their pay, or give them a bonus—I read Posner as saying “Nobody likes the Stakhanovite judge.”
That makes judicial behavior something of a puzzle. Why work at all? Why do more than the bare minimum? No one’s forcing them. No material or social incentive is asking them to do more. Why do they do it?
The answer must be something internal, intrinsic to the work itself. But the cynical answers—the ones that cast judges as simple ideologues or partisans—even if true, can’t account for most judicial behavior, most of the time.
Judges, it’s true, enjoy voting. Their votes give them much more utility than ours give us, because they’re more likely to be pivotal. If you’re part of a nine-person electorate, and voting in a hundred elections each year, you have a pretty good chance of casting a deciding vote at least once or twice.
But voting isn’t much of what judges do. They have to read, listen, speak, and write. Those take up most of their time. Why not just vote? Why read? Why listen? Why speak? Why write? Just take the vote. Enter the judgment. It’d be much easier that way.
Why do they do it? Why do judges choose to judge and do the other things? Because it is easy? Posner certainly doesn’t think it’s because it’s hard.
Posner gives us a striking answer, but the only one that makes sense. Why judge? You may as well ask: why would someone climb the highest mountain? Why cross the Atlantic? Why does Rice play Texas? Simple: For the love of the game.
Importantly, the judge is as much the fan as the player in the contest. They vote, sure. For the most part, the judge simply consumes. They sit, read, and listen. They pay attention to each case not because they’re the player, but because they’re the fan.
Posner describes the judge as like the spectator at a show. Why pay attention to a show? Because you want to know what happens. Because you’ll miss something if you don’t. You need to watch to get the answers: Who did it? Who was right? What happened? What does it all mean?
In voting and writing, the judge becomes the player. But the judge is often enough simply the critic. Who did it? Who was right? What happened? What does it all mean? They write it up.
In writing it up, the judges apply the rules of the game to the players. (You can still use the language of culture here, as Posner does, but the rule-constituted nature of games and law makes it natural to shift to the language of games here.) The rules constrain them even as they give their opinions form and substance.
The judges are fans of the game. They have a fan’s knowledge of its rules. Like the spectator at the game, the judge calls balls and strikes, sometimes differently than the umpire on the field, or the instant-replay camera. Who are they going to trust? Those guys, or their own lying eyes?
At the decisional level, judges can see the previous moves in the game, know they will have to take their own. Judges have some leeway with their moves, as with the calling of balls and strikes. But they also know that the rules constitute the game: No rules, no game.
Rules exert their own internal discipline on judges. You might cheat at chess, but would you knowingly misstate its rules? Would you do either if you couldn’t get yourself any material advantage by it?
Judges are fans of the game. The only utility they control comes from watching the game and playing the game. By design, it’s hard to get them to act against the rules of the game.
It’s why they do it, after all. For love of the game.
* * *
Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1, 23–30 (1993):
Anonymous asked:
stop speaking over women when they talk about issues with sexual assault. you're exactly like the types of misogynists that say "bUt wHaT aBoUt MeN's IsSuEs??" whenever a woman mentions feminism
I’m not sure what I did to prompt this ask
Being ephemeral scares me because it dulls my feelings and makes me wander in madness. Art by AnastasiaTrusova linktree
Orange County Courthouse (1969) in Santa Ana, CA, USA, by Richard Neutra with Ramberg and Lowrey. Photo by Julius Shulman.
Source: rosettaapp.getty.edu
Enjoyed reading Tobias A. Dorsey’s Some Reflections on Not Reading the Statutes, 10 Green Bag (2d) 283 (2007), and Some Reflections on Yates and the Statutes We Threw Away, 18 Green Bag (2d) 377 (2015), this morning.
The US Code is not the law of the United States, except where Congress has enacted part of it into law. The US Code is a consolidation of the laws of the United States.
The Code is meant to take the body of enacted law recorded in the Statutes at Large and reduces it to its operative text, without the repealed, expired, and spent, but with original enactments reconciled with amendments and modifications.
The Code presents only what its authors understand as the final operative text, arranged for convenience and clarity.
By design, the Code eliminates textual, structural, and historical evidence of Congressional intent. The text and the structure of the laws Congress enacted are adapted to a new design. The Code puts the history in bare references in the notes.
There are two further things worth noting.
First, the Code is a work of judgment. Although many amendments are unambiguous, telling readers what text to delete and what text to replace it with, some leave readers with discretion.
Second, the Code is not made by Congress. The Code is made by the Office of Law Revision Counsel in the House of Representatives.
The Code is not enacted law in the way the Statutes at Large are, in line with Article I, Section 7, passed by both chambers of Congress with the consent of the President or over the President’s veto.
The Code is a guide to the enacted law written by an agent of the House of Representatives in line with the limited authority granted to that agent by law.
The Code reflects that. It only “establish[es] prima facie the laws of the United States,” and its provisions are only “legal evidence of the laws” when “enacted into positive law.” 1 USC § 204(a). If a part of the Code has not been enacted, it can be rebutted by the actual law, recorded in the Statutes at Large.
But, as Dorsey points out, lawyers and judges often read and construe only the Code, ignoring the actual enacted law in favor of a handbook prepared by the House of Representatives.
The Harvard Bluebook, the standard citation manual, tells lawyers to ignore the Statutes at Large wherever possible. The Bluebook directs lawyers not to compare original statutes and amendments, but different editions of the unenacted Code.
The Supreme Court has followed the directions of the Bluebook at Congress’s expense. More than once now, the Court and the parties before it have made basic mistakes by reading the Code and not the law.
Just read the Statutes at Large, guys. It’s not that hard.
@lockrum The Bluebook citation hierarchy gives the reader a convenient and complete reference to current law. The Code has done the work for you.
Most readers prefer that one single Code reference to a compilation of the ultimate sources of enacted law in the Statutes at Large.
First, the US Code citation is much shorter than the full string of citations to the Statutes at Large.
The Code citation “42 USC § 1983” is much shorter than the Statutes at Large string citation “Act of April 9, 1866, ch 31, §1, 14 Stat 27; Act of April 20, 1871, ch 22, §1, 17 Stat 13; RS §1979; Pub L 96–170, §1, Dec 29, 1979, 93 Stat 1284; Pub L 104–317, title III, §309(c), Oct 19, 1996, 110 Stat 3853.”
Second, the US Code points to the statutes it consolidates.
Each Code provision ends with a full or partial string of citations to the Statutes at Large. If you have the Code, you have most or all of the references to the relevant Statutes at Large.
The Code entry for 42 USC § 1983, for example, includes all the elements in the string from RS § 1979 on, along with descriptions of the 1979 and 1996 amendments.
I said that the Code citation may only be “partial” because an enacted consolidation will always be the first element of the string citation. The Code omits references to the statutes consolidated in the enacted consolidation.
For example, the string citation that follows 42 USC 1983 starts with “RS §1979.” “RS” refers to the Revised Statutes, one of Congress’s early attempts to consolidate the federal statute book.
Because Congress properly enacted the Revised Statutes into law in 1874, in accordance with Article I, Section 7, the Revised Statutes supersede all prior enactments. They are “legal evidence of the laws and treaties therein contained.” Act of June 20, 1874, ch 333, §2, 18 Stat 113.
By RS § 5596, Congress repealed all public statutes enacted before December 1, 1873, excepting only those statutes that had been completely left out of the Revised Statutes.
As a result, the US Code string citation, which is meant as a comprehensive list of all the statutes currently in force that are consolidated in any one section of the Code, only needs the “RS.” Congress repealed everything else.
Before the enactment of the Revised Statutes, you might have argued that the consolidations made in the Revised Statutes were mistaken. But once Congress makes them law, they’re the law.
Until Congress changes the law.
Congress actually had to revise the Revised Statutes twice in a few years after 1874. The Act of February 18, 1875, ch 80, 18 Stat 316, fixed 69 mistakes. The Act of February 27, 1877, ch 69, 19 Stat 240, fixed another 83 mistakes, plus one mistake in the 1875 revisions.
The resulting Revised Statutes of 1878 were still “The Statutes of the United States, General and Permanent in Their Nature, in Force on the First Day of December [1873],” just four years late.
By the Act of March 9, 1878, ch 26, 20 Stat 27, Congress amended the statute authorizing the 1878 revision the Revised Statutes one last time, “striking the words ‘and conclusive’” from the provision that had made them “legal and conclusive evidence of the laws.” Now they were legal, but not conclusive.
Congress’s Revised Statutes project lasted from 1866 to 1878, about as long as Reconstruction. It was enough of a headache that Congress put off a new consolidation for another half century, adopting the US Code only in 1926.
Unlike the Revised Statutes, the Code would not be “legal evidence of the laws therein contained,” but only prima facie evidence, until Congress enacted it into law, title by title.
Third, and returning to your Bluebook question, you only have to go into the Statutes at Large if there’s a question of statutory meaning.
The Code is the best consolidation of the enacted law. The Code is prima facie evidence of the law it consolidates. If you can’t rebut that evidence, it’s conclusive.
In most cases, there’s no question of meaning. The US Code has gotten it right. The parties don’t contest its meaning. There’s no reason to point to its sources.
But when there is a question of meaning—when someone has misread the statute to your disadvantage—you should read the statute to help answer it. Not just the Code.
Enjoyed reading Tobias A. Dorsey’s Some Reflections on Not Reading the Statutes, 10 Green Bag (2d) 283 (2007), and Some Reflections on Yates and the Statutes We Threw Away, 18 Green Bag (2d) 377 (2015), this morning.
The US Code is not the law of the United States, except where Congress has enacted part of it into law. The US Code is a consolidation of the laws of the United States.
The Code is meant to take the body of enacted law recorded in the Statutes at Large and reduces it to its operative text, without the repealed, expired, and spent, but with original enactments reconciled with amendments and modifications.
The Code presents only what its authors understand as the final operative text, arranged for convenience and clarity.
By design, the Code eliminates textual, structural, and historical evidence of Congressional intent. The text and the structure of the laws Congress enacted are adapted to a new design. The Code puts the history in bare references in the notes.
There are two further things worth noting.
First, the Code is a work of judgment. Although many amendments are unambiguous, telling readers what text to delete and what text to replace it with, some leave readers with discretion.
Second, the Code is not made by Congress. The Code is made by the Office of Law Revision Counsel in the House of Representatives.
The Code is not enacted law in the way the Statutes at Large are, in line with Article I, Section 7, passed by both chambers of Congress with the consent of the President or over the President’s veto.
The Code is a guide to the enacted law written by an agent of the House of Representatives in line with the limited authority granted to that agent by law.
The Code reflects that. It only “establish[es] prima facie the laws of the United States,” and its provisions are only “legal evidence of the laws” when “enacted into positive law.” 1 USC § 204(a). If a part of the Code has not been enacted, it can be rebutted by the actual law, recorded in the Statutes at Large.
But, as Dorsey points out, lawyers and judges often read and construe only the Code, ignoring the actual enacted law in favor of a handbook prepared by the House of Representatives.
The Harvard Bluebook, the standard citation manual, tells lawyers to ignore the Statutes at Large wherever possible. The Bluebook directs lawyers not to compare original statutes and amendments, but different editions of the unenacted Code.
The Supreme Court has followed the directions of the Bluebook at Congress’s expense. More than once now, the Court and the parties before it have made basic mistakes by reading the Code and not the law.
Just read the Statutes at Large, guys. It’s not that hard.
