Backroom Errata

[Montmorency]

This is the opinion of a single person and not the basis of the legal system. The humanity aspect needs to come from the legislature. This article is not so much about judges as it is with the authors problem with the system writ large.

I think that's part of the point.

It is an impossible ask to bemoan the judges for inserting their partiality while demanding they also show humanity (your mileage may vary).

Partiality is inevitable, humanity (humaneness) is not, perhaps.

The authors may not see any distinction at all between a military strike and an officer shooting a child but plenty of people do. As a lawyer it is your job to argue that there isn't

In their ethics it is probably obvious, so they're speaking to a wider issue of what kind of moralities are common in our world and government. It's also the biggest weakness in the position, since it relies less on a structural change and more on having a different kind of society and different people up for the job - obviously a more challenging proposition.

This companion piece of judicial scenarios probably represents their morality in the (A) options. Here's an example:

3. A prominent tech company has accidentally disclosed all of its customers’ personal data to the public, including their entire email inboxes, their web search histories, their medical histories, their chat transcripts, their credit card numbers, and their tastes in unconventional pornography. Countless lives have been ruined, mass chaos has resulted. An employee whistleblower at the company reveals to the press that before the breach, the CEO was frequently heard to shout “Fuck the public! We own the public! The customer is the product!” whenever security concerns were raised. The company immediately fired the whistleblowing employee, and citing a small-print provision of the employment contract, demanded the employee pay back the entirety of the salary earned during the 10-year course of their employment. The contract also specifies that if the employee cannot pay, they become permanently indentured to the company. The employee files a lawsuit contesting the contract and alleging wrongful termination, while the customers enter a class action lawsuit over the data breach. You are the judge. Decide.

A. They did what? Okay, first, clearly you can’t have a contract like that, that’s outrageous. No indentured servitude. Jesus, how is it that I even have to say that? Is this some colonial-era nightmare flashback? The company is ordered to restore the employee to her position, compensate her for the time she was “fired,” and apologize profusely. Actually, you know what, just turn the management of the company over the workers. As for the customers, every single one of them needs to be paid fair compensation for their harm. Duh.

A reasonable person within the context and within the persons experiences. Anyone who has ever empathized with another person has employed this standard.

It's not a standardizable standard, so the point stands. And they clearly don't trust the empathy of most judges.

Humane is just as nebulous as a concept as impartiality.

Their point is that "impartial" is an outright myth, while "humane" is concrete but rare. Of course, a Randian might say that mercy is inhumane.

Real lasting changes happens with lawmakers and court cases. The streets only create real lasting change proportional to the level of violence employed by either side. When the military desegregated or when the civil rights act was passed, white America did not celebrate a middle or end point of their racism. Rather these legal changes began to chip away at a power structure (that we are still dealing with today).

Aren't you missing who did the hard work of advancing desegregation and civil rights ideas in the public sphere? You know it wasn't "white America" as a whole. But I'll grant that it's an empirical question whether there's a spectrum here, in the relationship between judicial efficacy in social change and judicial acknowledgement of social change.