…the adversary system, almost by definition, cannot address the gray area of the "truth" present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of "alternative dispute resolution" are so important.
The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.
Sotomayor's critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.
On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.
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Thank you for the link to Auden's reading. It's really something to hear him read those words out loud. Thanks for reminding me of what it's like to experience poetry that way.
This is terse, clear and inspiring. Not often that the truth is accompanied by art. Thanks.
Peter, thanks for the quotation from Hand – an appropriate one for this post – and also for the Koch anecdote. I'm delighted to say that they were both new to me. I'm glad this post inspired you to share them both. Thanks for stopping by.