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Monday, August 28, 2006

Justice Stephen Fortunato on Justice Alito

Lostworld Been working on the next installment of my law review rankings trilogy (the first two installments are available here and here).  The third one looks at citations to secondary journals for a couple of purposes: first, to throw some light on ranking of law schools that publish them; second, to rank the journals themselves and facilitate comparison with primary journals.

I saw in the list of secondary journals Unbound: Harvard Journal of the Legal Left--an on-line journal, which I've enjoyed reading in the past.  (One comment here--has anyone else noticed that journal names are getting longer.  I think that's a mistake, if you want to get citations; nevertheless, with the longer titles, no one will mistake a journal's purpose.) 

Unbound's first issue had a terrific line-up of scholars.  And that led me to look at their most recent issue and then to this essay by Justice Stephen J. Fortunato, Jr. of the Rhode Island Superior Court (in Rhode Island the Superior Court judges are called "Associate Justices").  Justice Fortunato discusses Justice Samuel Alito in the context of a review essay on the edited collection, "The Lost World of Italian American Radicalism: Politics, Labor, and Culture."

I am always interested in hearing judges speak on larger issues of politics, religion, and morality.  I love Benjamin Cardozo's Nature of the Judicial Process and always enjoy reading judges' speeches.  (Some recent writings on antebellum Alabama judges here).  I commented earlier this summer on Justice Alito as a legal historian and what his note in the Yale Law Journal may say about his judicial philosophy.

I find Justice Fortunato's essay of particular interest--here is a jurist writing about another jurist.  I think you'll be interested in reading his thoughts.  This excerpt gives a sense:

Since the beginning of written history the virtues of compassion and mercy have been described as absolutely central to the process of judging, especially in equitable matters; and this has been recorded from the time of Aristotle, through the great English chancellors, to Roscoe Pound and Judge Jerome Frank, and to Justice Harry Blackmun's famous anti-capital punishment dissent in Callins v. Collins: "From this day forward, I no longer shall tinker with the machinery of death."

One searches in van in Alito's personal and professional life, as well as his written decisions, for compassion--or passion for that matter--and for legal commentary favoring the marginalized, the economically fragile, the voiceless.

You'll be hearing a lot more about compassion and mercy as traits that judges ought to possess.  Perhaps it's a related to the emerging aloha jurisprudence.  And certainly there will be debate on just what constitutes compassion.  Indeed, Judge J. Harvie Wilkinson has already opened that subject for debate with his important 2003 Virginia Law Review article "Why Conservative Jurisprudence is Compassionate."

Alfred  L. Brophy
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