December 22, 2006
Dice Loading article
Ran across an article of interest apparently wondering if courts "load the dice" of interpretation to get the result that they want. It's here. I haven't read it, but it looked interesting.
That article reminded me of another thing that bugged me when I was writing the book, there's a lot of scholars and courts who cast about very serious charges of either inadvertent or intentional intellectual dishonesty in this arena. "Legislators make statements they know aren't reflective of intent" or "judges look for only legislative history that supports his views (picks out friends among the crowd)".
In reading the various material on this point, it struck me that people who make such charges somehow assume that their alternative approaches don't allow for the same thing. Also, it just strikes me as curious that people think that others in the judicial and legislative branches act with such deceitful motives. In life, I've found that people who make such accusations often do so because they're familiar with the tactics themselves.
I don't kow if "dice loading" is of this ilk, but it sounds like it from the title. I don't mean to suggest that anything in this post is directed toward it, because I haven't read it, it just reminded me of this point. For all I know, the article concludes there is no dice loading and makes the points I've just made.
Do youu really think that judges "load dice" to get their way? Or, that legislators deceitfully make representations so that their cohorts can later use them to manipulate meaning?
The implications of that view are profound, I think.
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I just read that piece, and boy did you not miss much. It's basically an op-ed disguised as a law review article, a pointless little piece of self-contradiction. Shorter version: "When the other guy does it, it's judicial activism. When I do it, I'm just divining the plain meaning of the statute. Right, Justice Scalia?" Yuck.
Posted by: Guest | Dec 22, 2006 3:10:52 PM
Maybe I should start a new series: Readers' Digest Condensed Law Review Articles. Most of them could be: "The Supreme Court was, again, asleep at the switch on this one."
Posted by: David Hricik | Dec 23, 2006 3:48:12 AM
I think 90%+ of the legal issues decided by the courts and are so obscure that there is no reason to "load the dice"...most people-- even judges-- don't care all that much about setting policy regarding some obscure ERISA provision to bend the law one way or another.
but at other times, it's hard to believe that a judicial opinion is nothing more than policy preferences masked as statements of law (e.g. Dred Scott, Bob Jones, etc.).
in the big picture, is a little judicial activism is a significant problem? no. there are more important things to worry about in this world. but the role of courts is a fascinating issue, so i do not feel guilty thinking about it, even if the departures from legitimate exercises of judicial power are infrequent.
as far as legislative history goes, i suppose i'm not so inclined to think that it is perverted *all* the time. but practicing in an area (tax) in which that history is deliberately perverted all the time, yes, i am extremely skeptical of it. i don't think that means i am an evildoer myself. there are entire books written about tax lobbying in washington. see "showdown at gucci gulch," and "the lobbyists," and i don't think seeing deceit in others means i'm deceitful myself.
i am disgusted by all the little breaks and special rules that are inserted in the legislative history to eviscerate the tax base; if those who supported legislatve history knew how many billions of dollars are siphoned from the Treasury using arguments based on LH, they'd think a lot differently about its use.
maybe LH is legitimate in other contexts. i think the tax laws are visibly filled with pork and special interests, both in the statutory text and in the legislative history materials, so perhaps I'm just a bit more jaded about letting courts pluck statements from LH. i know that defenders of LH says, "well, you just have to use it carefully to make sure you are being manipulated," but the lobbyists writing the committee reports are not dumb. they know how to phrase things to that the IRS will think it is law. and, those tricks work. as someone who has decided to devote his working life to this area, it bothers me to see such perversions of the legislative process.
Posted by: andy | Dec 23, 2006 9:07:36 PM