Do Appellate Courts Regularly Cheat?

By Smith, M. B. E. | Criminal Justice Ethics, Summer-Fall 1997 | Go to article overview

Do Appellate Courts Regularly Cheat?


Smith, M. B. E., Criminal Justice Ethics


It probably will not surprise you to be told that the practice of law is almost entirely remote from its philosophy. Lawyers and judges are not much interested in jurisprudence--as indeed, not many mathematicians or scientists are much interested in the philosophies of their respective disciplines. (For that matter, philosophers are not much interested in the philosophy of what they do either.) But I have had one jurisprudential question set for me by my appellate practice, which has been almost entirely as a criminal defender. I have found in a substantial number of my appellate cases that I was left at its end with the distinct impression that the court had "cheated" in reaching its decision: that in considering the case it had early on made up its collective mind what this would be and that it had thereafter ignored contrary facts or legal principles, however weighty those might have been. And I believed in some of those cases (albeit not all) that the court had as a result come to a clearly incorrect legal conclusion--with unfortunate consequences to my client. In talking shop with other appellate attorneys I frequently ask whether they too have often been left with the same impression, and their invariable response is: "Sure, let me tell you about. . .." So I found that I and other practitioners believed that appellate courts frequently fail to follow the law-at times, as it seemed to us, deliberately so. (Because we had clearly brought those inconvenient facts and arguments to the court's attention!) This raised two significant questions: one seemingly empirical (Is it true that courts regularly `cheat' as so described?) and another straightforwardly jurisprudential (Is it proper--that is, consistent with true principles of political morality--for courts so to cheat?)

Somewhat surprisingly, the first question--do courts often cheat?--is the least tractable. It assumes a controversial jurisprudential hypothesis, namely, that at least some propositions of law have a determinate truth value. (If none do, then there is nothing for courts to follow, no way that they could cheat.) Champions of indeterminacy--by whom I understand philosophers who deny that there is determinate truth in domains wherein we commonly suppose we have knowledge: that is, the physical sciences, the social sciences, morality--have also been very influential in jurisprudence. Holmes, one of our greatest judges, famously remarked in his essay The Path of the Law that law is only "the prediction of the incidence of public force through the instrumentality of the courts."(1) Legal realists in the 1930s, and Critical Legal Theorists today, agree that decisions in concrete cases are never deductions from facts and pre-existing law, but rather are mere expressions of judges' political ideologies. The point is sometimes made by saying: "The law is only what the judge had for breakfast." So one might quite reasonably, block my first question (Do courts often cheat?) by saying, "Courts can't cheat because they are not bound by anything at all."

Despite the attractive simplicity of the skeptics' answer, I suggest that we not make such short shrift of an interesting question. (Indeed, the best argument against legal skepticism, and against skepticism generally, is that it makes every interesting philosophical question seem boring.) And legal skepticism, while now much in fashion in the law schools and the law reviews, is not the dominant view among scholars who specialize in the philosophy of law. Certainly it is not the dominant view among lawyers--to the extent that they count as having jurisprudential views. Legal scholars often say that legal skepticism is the lawyer's view of the law,(2) but it is more plausibly styled the law professors'. Legal education is still dominated by the case method, which focuses primarily upon appellate cases published in the official reporters. Compilers of casebooks tend to look for those signs of doctrinal embarrassment that prefigure changes in the law: where there is no convincing theoretical justification for an established rule or where such a rule frequently works an injustice. …

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