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Judges

Appellate judges-job is to interpret and
apply past law

Law is either
– Case law-common law
– Statutory law-legislative enactments
Judges reason

Objectively and neutrally
– Is this possible?
– How does subjectivity present itself
Statutory Interpretation

Judges must apply law to facts
 Juries try the facts-judges interpret law
 Judges interpret the meaning of statutes
 Statute is law enacted by legislature
 Enacted law=positive law
 Interpretation of statutes is informed by
differing philosophies of “statutory
construction” and law
Speluncean Explorer Case

Five judges-five opinions-five ways of
thinking about how to apply this law to this
case

What happened
N.C.S.A. 12-A
 WHOEVER
SHALL WILLFULLY
TAKE THE LIFE OF ANOTHER
SHALL BE PUNISHED BY DEATH
Chief Justice Truepenny

Uphold Conviction
 Letter of law clear
 Allows for no exception-must convict
 Executive clemency
 His philosophy STRICT STATUTORY CONSTRUCTION
Justice Foster

Overturn conviction on two grounds
 LOOSE STATUTORY CONSTRUCTION
– Go behind words look for legislative intent
– NATURAL LAW
– Outside the physical boundaries of the
jurisdiction, positive law does not apply
Justice Tatting

Withdraws– Irresolvable contradiction between his legal
philosophy that the letter of the law should
apply (STRICT CONSTRUCTIONIST) and his
moral view that this would lead to unjust result
Justice Keen

Uphold Conviction-Strict Statutory
Constructionist
 Inappropriate to call for Executive
Clemency (pardon)
 Judge’s job is to apply to letter of the law to
the facts-to read the statute literally
Justice Handy

Overturn Conviction
 Philosophy of Legal Realism-thinks of the
political and social context of law
 Considers the reality of who the Governor is
 Relevance of Public Opinion
How Legal Philosophy Shapes
Judicial Decision-Making

Judge’s opinions are grappling with
– Dissonance between law and morality
– The legal idea of necessity
– Mens Rea
– Rational choice
– Social contract
What about Judicial
Discretion?
How to account for Judges’ subjectivity
 Jerome Frank argues that judging is a
psychological process-that judges reason
from an intuition, a hunch.
 Subjectivity most vividly expressed in
“sentencing.”

Who would you choose?
You’re representing a doctor, charged with murder
under a similar statute,because she, at the request
of her patient, suffering from early stages of
Alzheimer's, helped him commit suicide by
injecting him with cyanide
 What if the doctor was charged with murder under
this statute because he performed an abortion on a
patient who was 16 weeks pregnant?