Wednesday, October 27, 2010

The First Thing We Do ...

Stephen B. Presser reviews Unrestrained: Judicial Excess and the Mind of the American Lawyer, by Robert F. Nagel, in The University Bookman, Winter 2010.
By our use of the case method and our Socratic style of legal education, Nagel argues, we law professors teach our students to believe two somewhat contradictory things—that judges’ personal preferences inevitably influence cases, but that personal idiosyncrasy can be reduced to acceptable levels because judges are constrained by a need to follow previous historical precedents and decide cases only with reference to the arguments of counsel and the relevant texts of Constitution, statutes, and regulations. This, Nagel claims, breeds judges (all of whom are lawyers) who speak an esoteric language, and who become convinced of the moral clarity of their reasoning and the infallibility of their judgment, to such an extent that they are compelled to dictate the solutions to our most contentious social, cultural, and political issues.
Mr. Nagel was the featured speaker at the Milwaukee Chapter's June 27, 2002 event.