Restitution Discussion Group Archives
| Sender: |
Allan Axelrod |
| Date: |
Mon, 8 Dec 1997 10:30:51 -0500 |
| Re: |
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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