About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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In Our Name
Test Drive the Book!
« 147. Dead letters | Main | 145. The Brown test »
Friday
Aug112006

146. An oyez of scandal

How should one respond to a libel?  File suit?

Mrs. Marwood. What, and have your name prostituted in a public court; yours and your daughter’s reputation worried at the bar by a pack of bawling lawyers? To be ushered in with an oyez of scandal; and have your case opened by an old fumbling lecher in a quoif like a man-midwife, to bring your daughter’s infamy to light; to be a theme for legal punsters, and quibblers by the statute; and become a jest, against a rule of court, where there is no precedent for a jest in any record; not even in Doomsday Book: to discompose the gravity of the bench, and provoke naughty interrogatories in more naughty law Latin; while the good judge, tickled with the proceeding, simpers under a grey beard, and fidgets off and on his cushion as if he had swallowed cantharides, or sat upon cow-itch.

Lady Wishfort. O, ’tis very hard!

Mrs. Marwood. And then to have my young revellers of the Temple take notes, like prentices at a conventicle; and after talk it over again in Commons, or before drawers in an eating-house.

Lady Wishfort. Worse and worse.

Mrs. Marwood. Nay, this is nothing; if it would end here ’twere well. But it must after this be consigned by the shorthand writers to the public press; and from thence be transferred to the hands, nay, into the throats and lungs of hawkers, with voices more licentious than the loud flounder-man’s: and this you must hear ’till you are stunned; nay, you must hear nothing else for some days.

That's from Congreve's The Way of the World, which after three centuries remains unsurpassed in its comic abuse of lawyers and judges.  (If you're wondering about the cantharides or cow-itch, follow the links.)   But there are layers of irony in Mrs. Marwood's  speech,  because she's one of the villains of the piece.   Layer one, which is apparent to everyone in the theater except Lady Wishfort: her advice is deeply self-interested.  Layer two, which is mainly apparent to lawyers: it's still good advice. 

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