The Instigator
dogparktom
Pro (for)
Winning
32 Points
The Contender
tmhustler
Con (against)
Losing
11 Points

Judicial Activism

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Post Voting Period
The voting period for this debate has ended.
after 7 votes the winner is...
dogparktom
Voting Style: Open Point System: 7 Point
Started: 8/17/2009 Category: Politics
Updated: 8 years ago Status: Post Voting Period
Viewed: 5,278 times Debate No: 9218
Debate Rounds (3)
Comments (10)
Votes (7)

 

dogparktom

Pro

During her confirmation hearing, Justice Sonia Sotomayor repeatedly, and rightly, assured the Senators that a judge's primary duty was to follow the law that applied to the particular case. The mission of courts and judges is the administration of justice. However, sometimes strictly applying the specific law that applies to a particular case will result in an obviously unjust result. Unfortunately, none of the Senators asked Sotomayor a general question that I would have asked.

I respectfully raise the following question for debate:

Does a judge, in the interest of justice, have the inherent authority to not follow the law (the specific law that incontestably applies to the case) in a particular case so as to prevent an outrageous and unconscionable result and to render justice to the litigants?

I answer in the affirmative for the following reasons:

First, it is impossible for the lawmaker to enact laws that will cover all the possible cases that can arise in society. A civilized society necessarily needs an institution (the judicial branch - courts and judges) that will engage in the administration of justice. Cases will arise, however, where there are no applicable laws, or where applying the applicable law will result in an intuitively "outrageous and unconscionable" result. Accordingly, judges necessarily have inherent authority to decide cases by rendering equitable justice to the litigants. 1

Second, in practice, a judge (and other actors in the administration of justice) will engage in the practice of rule departure 2 in a particular case or situations so as to prevent injustice, or to prevent an obviously unjust result, which will occur if the applicable law is strictly followed. In one case, a great trial judge departed from the applicable law so as to prevent the commission of probable future acts of injustice in prison against the defendant. 3

I look forward to meeting an opponent who will take the negative in this debate.

____________________________

1. "Equitable Justice is that kind of justice which Aristotle postulated as being a form of justice superior to legal justice. Realizing that the "universality" (generality) of the law sometimes gave rise to injustices, Aristotle postulated equity, which was to function, though the judge, as a "correction of the law where it is defective owing to its universality." (NE 421) But Aristotle maintained that it, i.e., the law, "is nonetheless correct; for the error is not in the law nor in the legislator but in the nature of the thing." (NE 421)

2.
Rule Departures: A practice distinct from, but related to, civil disobedience is rule departure on the part of authorities. Rule departure is essentially the deliberate decision by an official, for conscientious reasons, not to discharge the duties of her office (Feinberg, 1979). It may involve a decision by police not to arrest offenders or a decision by prosecutors not to proceed to trial, or a decision by a jury or by a judge to acquit an obviously guilty person. Whether these conscientious acts actually contravene the general duties of the office is debatable. If an official's breach of a specific duty is more in keeping with the spirit and overall aims of the office than a painstaking respect for the particular duties is, then the former might be said to adhere better than the latter does to the demands of the office (Greenawalt, 1987, 281).6 http://www2.mnbar.org...

3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org...
tmhustler

Con

to clarify our positions in this debate and please correct me if I am wrong

pro is trying to show that a judge "has the inherent authority to not follow the law"

con is trying to show that statement to be incorrect

my opponent tries to show this to be true in two ways
first he states that "it is impossible for the lawmaker to enact laws that will cover all the possible cases that can arise in society." what he fails to see is that if congress does not pass a law agents something than it is not illegal. It is not the judicial branches job to impose justice. it s there job to interpret the laws of congress or to deem them unconstitutional.

second

now to my opponents example of the mentally ill person charged with burglary, and aggravated assault. he seems to have forgotten that insanity is a valid defense against a crime so the judge did in fact follow the law.
(a) Affirmative Defense.�€" It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. http://uscode.law.cornell.edu...
Debate Round No. 1
dogparktom

Pro

Thanks for joining me in this debate. YOU INQUIRE:

"Con
to clarify our positions in this debate and please correct me if I am wrong
pro is trying to show that a judge "has the inherent authority to not follow the law"
con is trying to show that statement to be incorrect"

I RESPOND:
To clarify, PRO contends that a judge "has the inherent authority to not follow the law", a specific law that indubitably applies to the particular case, if applying such law in such case will necessarily cause an outrageous and unconscionable result in the case.

CON contends that judges have no such inherent authority. They must in all cases apply the specific law the indubitably applies to the particular case.

YOU ARGUE:
"first he states that "it is impossible for the lawmaker to enact laws that will cover all the possible cases that can arise in society." what he fails to see is that if congress does not pass a law agents something than it is not illegal. It is not the judicial branches job to impose justice. it s there job to interpret the laws of congress or to deem them unconstitutional."

I RESPOND:

The statement "what he fails to see is that if congress does not pass a law agents something than it is not illegal." is a true statement, but an irrelevant statement.

A court case is either civil or criminal. It arises out of an event or set of circumstances involving the two parties. And the two parties are in conflict in the case. Our debate is about a PARTICULAR case where a SPECIFIC law indubitably apples to the case. But if the judge applies that law in the case, the result will be OUTRAGEOUS and UNCONSCIONABLE for either one or both of the parties.

YOU STATE: "It is not the judicial branches job to impose justice"

I disagree. The ultimate purpose of a court is to render "LEGAL JUSTICE" to the parties in the case. A case is initiated by one of the parties suing the other party (and seeking a result that he thinks and contends constitutes legal justice) LEGAL JUSTICE is justice according to the law. http://en.wikipedia.org...

YOU STATE: "it s there job to interpret the laws of congress or to deem them unconstitutional."

I agree, but these duties of a court are irrelevant to the issue that we are debating, namely, DOES A JUDGE have INHERENT AUTHORITY to NOT apply a SPECIFIC LAW in a PARTICULAR case to prevent an OUTRAGEOUS and UNCONSCIONABLE result.

YOU ARGUE:
"now to my opponents example of the mentally ill person charged with burglary, and aggravated assault. he seems to have forgotten that insanity is a valid defense against a crime so the judge did in fact follow the law"

I RESPOND:

Here is the example that you refer to:

"3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org......

The example DOES NOT state that the defendant was mentally ill. It states that he was retarded. 'Mental illness' and mental 'retardation' are not the same kind of mental impairment. Therefore, a 'mental illness' DEFENSE cannot be asserted by the defendant. The law that you cite does not apply in the case.

The example states that he was 'RETARDED', http://encarta.msn.com... , which is not the same thing as being 'mentally ill'. http://encarta.msn.com... ; http://encarta.msn.com...

Your argument assumes a fact ( and bases a claimed defense on that fact) that is not mentioned in the example. Thus, your argument is irrelevant.
tmhustler

Con

I would like to thank my opponent for his rebuttal

I would like to assert that pro's clarification of his resolution is still "a judge has the inherent authority to not follow the law". to make this an easier debate for my opponent I think the best fix is to simply change "not follow the law" too "not follow a specific law." this seams to be a fair trade from your original resolution and the new one you posed in the second round.

==="LEGAL JUSTICE is justice according to the law."

this argument is irrelevant because it is a judge acting within the laws.

my opponent claims it is the judicial branches job to impose justice. I would like to know were in the constitution does it state that it is a judges job to impose justice.

==="The example DOES NOT state that the defendant was mentally ill. It states that he was retarded. 'Mental illness' and mental 'retardation' are not the same kind of mental impairment. Therefore, a 'mental illness' DEFENSE cannot be asserted by the defendant. The law that you cite does not apply in the case."

my opponent seems to have misread that article because it states "the defendant, as a result of a severe mental DISEASE or DEFECT, was unable to appreciate the nature and quality or the wrongfulness of his acts."
{I would like apologist for the use the term retard I now it is an outdated description of that disease} mental retardation is both a disease and a defect so it is a valid defense.

"a SPECIFIC law indubitably apples to the case. But if the judge applies that law in the case, the result will be OUTRAGEOUS and UNCONSCIONABLE for either one or both of the parties."

I challenge my opponent to find any such instance were this has happened, or an instance were following the law would result in such an act.{please no cases that have already been overturned}
Debate Round No. 2
dogparktom

Pro

YOU STATE AND PROPOSE:
" I think the best fix is to simply change "not follow the law" too "not follow a specific law." this seams to be a fair trade from your original resolution and the new one you posed in the second round."
I AGREE

YOU ARGUE:
"==="LEGAL JUSTICE is justice according to the law."
this argument is irrelevant because it is a judge acting within the laws.
my opponent claims it is the judicial branches job to impose justice. I would like to know were in the constitution does it state that it is a judges job to impose justice."

I RESPOND:
"LEGAL JUSTICE" is justice (1) according to the applicable law, AND (2) within the limits of the applicable law. For example, assume that after a trial the jury convicts me of burglary and that law applicable to the burglary provides for a maximum prison sentence of 10 years; but, thereafter, the judge sentences me to 15 years in prison. The sentence VIOLATES LEGAL JUSTICE because it is NOT WITHIN THE LIMITS of the applicable law.

YOU STATE:: "my opponent claims it is the judicial branches job to impose justice. I would like to know were in the constitution does it state that it is a judges job to impose justice."

I RESPOND:
Here is the Preamble to the Constitution:

"The Constitution of the United States of America
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
http://www.law.cornell.edu...

As you can see in the Preamble, one of the goals of the new federal government specified in the Constitution was to "establish justice". To establish justice, a judicial branch and judges were necessary. Thus, I argue that a judges DUTY is to "establish justice" namely, LEGAL JUSTICE, in each particular case.
see, http://www.law.cornell.edu...
http://www.law.cornell.edu...
http://www.law.cornell.edu...

Finally, regarding "imposing justice," courts (acting through judges) technically do not impose justice. They decide cases according to, and within, the law that is applicable to the particular case. If the case is decided without any errors of law, the result is considered as constituting LEGAL JUSTICE.

YOU ARGUE:

"==="The example DOES NOT state that the defendant was mentally ill. It states that he was retarded. 'Mental illness' and mental 'retardation' are not the same kind of mental impairment. Therefore, a 'mental illness' DEFENSE cannot be asserted by the defendant. The law that you cite does not apply in the case."

my opponent seems to have misread that article because it states "the defendant, as a result of a severe mental DISEASE or DEFECT, was unable to appreciate the nature and quality or the wrongfulness of his acts."
{I would like apologist for the use the term retard I now it is an outdated description of that disease} mental retardation is both a disease and a defect so it is a valid defense"

I RESPOND:

The defendant in the example was not mentally ill. He was retarded which means a deficiency in intelligence, not mental illness. YOU have read "mental illness" into the example. Here, again, is the example:

"3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org...;

Unless you can provide psychological or psychiatric evidence that a mental deficiency (retardation) constitutes a recognized "mental illness", I contend that the defense that you cite, namely, http://uscode.law.cornell.edu... ,
does not apply, and is , therefore, not available to, the defendant in my set forth example just above.

The law that you cite and rely upon does not apply for another reason. It is federal law. But, the case involved in the above example was an actual case in Minnesota. Therefore, only Minnesota law on defenses to crimes applies.

Here is the applicable Minnesota law:

"2008 Minnesota Statutes
Resources
Topics
Defenses
Insanity Defense
Mental Illness, Persons with
Popular Names of Acts
611.026 CRIMINAL RESPONSIBILITY OF MENTALLY ILL OR DEFICIENT.
No person shall be tried, sentenced, or punished for any crime while mentally ill or mentally deficient so as to be incapable of understanding the proceedings or making a defense; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.
History: (9915) RL s 4756; 1971 c 352 s 1; 1986 c 444
https://www.revisor.leg.state.mn.us...

NOW, THEREFORE, I CONTEND THAT YOU HAVE THE FOLLOWING BURDENS OF PROOF:

(1) "Unless you can provide psychological or psychiatric evidence that a mental deficiency (retardation) constitutes a recognized "mental illness", I contend ..."

(2) You must cite a Minnesota criminal case involving a "mentally deficient" defendant who asserted a defense under MS 611.026. I can't find one.

FINALLY, YOU STATE:

""a SPECIFIC law indubitably apples to the case. But if the judge applies that law in the case, the result will be OUTRAGEOUS and UNCONSCIONABLE for either one or both of the parties."

I challenge my opponent to find any such instance were this has happened, or an instance were following the law would result in such an act.{please no cases that have already been overturned}"

FINALLY, I RESPOND AND ARGUE:

I cite this case:

""3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org...;

Upon personal knowledge, I certify that the case was not appealed and overturned. John DeSanto was recently appointed to the district court in Duluth, Minnesota. http://www.mncourts.gov... . If you call John for verification that the example was not overturned, SAY HEY FROM TOM.

Finally, I contend that if the judge had sent the defendant ( who was retarded and a dupe of his accomplice) to prison for the mandatory 3 years, such would be UNCONSCIONABLE AND OUT..
tmhustler

Con

I would like to thank my opponent for his rebuttal and his definitions.

"LEGAL JUSTICE" is justice (1) according to the applicable law, AND (2) within the limits of the applicable law".===

my point on legal justice still stands because this debate is about a judges so called right to act above the law. not them acting within the laws.

==="Thus, I argue that a judges DUTY is to "establish justice" namely, LEGAL JUSTICE, in each particular case."

I am glad my opponent admits that only legal justice is granted. { he has unwittingly forfeited this debate by saying only justice within the law is permitted.}

==="Finally, regarding "imposing justice," courts (acting through judges) technically do not impose justice. They decide cases according to, and within, the law that is applicable to the particular case. If the case is decided without any errors of law, the result is considered as constituting LEGAL JUSTICE."===

I am glad pro changed his mind that it is not a judges job to impose justice outside the law { if my opponent changed his mind on the resolution why would you not vote con}

==="The law that you cite and rely upon does not apply for another reason. It is federal law. But, the case involved in the above example was an actual case in Minnesota. Therefore, only Minnesota law on defenses to crimes applies."===

unfortunately my opponent does not realize hat federal law has jurisdiction over state law.

==="Unless you can provide psychological or psychiatric evidence that a mental deficiency (retardation) constitutes a recognized "mental illness, I contend that the defense that you cite, namely, http://uscode.law.cornell.edu...... ,
does not apply, and is , therefore, not available to, the defendant in my set forth example just above."===

normally I would prove this but my opponent has already found it for me.

==="No person shall be tried, sentenced, or punished for any crime while mentally ill or MENTALLY DEFICIENT so as to be incapable of understanding the proceedings or making a defense"===

so in pro's own quote he admits that mental illness, and mental deficiency s are both covered under that law.

now my opponent leaves me with the following burdens of proof

! mental deficiency is caused by metal illness, if you have a mental illness than you are mentally deficient

2nd my opponent already gave the quote.{found above}

pro goes back to his original example that has already been disputed.

my opponent has given no examples were a judge should act above the law.
pro gave two thing I must do to win this debate I answered both of them therefore I must claim victory
Debate Round No. 3
10 comments have been posted on this debate. Showing 1 through 10 records.
Posted by jurist24 8 years ago
jurist24
I don't think the debate participants can fairly invoke the Constitution because the roles of the judges are not clearly defined in it. While the preamble may state that one of the goals of the new society is to "establish justice", it does not delegate this role to the judiciary, even in Article III.
Posted by dogparktom 8 years ago
dogparktom
The foundational document for this debate has been published as a web page. http://docs.google.com...
Posted by dogparktom 8 years ago
dogparktom
Thank you sincerely for the advice. I'm new at debate. I was a jock in high school. I should have been in debate club.
Posted by JBlake 8 years ago
JBlake
Con:
In the future, you should build an offensive case of your own. Do not content yourself with merely rebutting your opponent point by point. Rebut the core of his argument, not every single point; then build your own argument.

You should also work on your format. "Quote" respond is a poor format that makes it difficult for the reader to pull out your major points and thesis. Look at the debates of some of the people on the leader board and see how they format their debates.
Posted by JBlake 8 years ago
JBlake
Pro:
In the future, try to use more examples to support your position. Using only one example (with a poor link due to the mental deficiency defense) makes your argument weak. Had Con built a case against your thesis, or provided supporting evidence for his claim that justice is not the role of judges, he would have won.

Also, work on your format.
Posted by JBlake 8 years ago
JBlake
Conduct:
Tie - Both sides were reasonably courteous.

Sp/Gr:
Pro - Con seems to have a consist problem with capitalization. Pro's sentence structure was readable. I would advice Pro to adopt a different format for debates in the future, however. "Quote" respond is not an effective format. It harms your ability to unfold an argument. It makes it difficult for readers to see how the points connect to your main thesis. Your vocabulary and sentence structure is good, work on overall format.

Arguments:
Pro - Con left most of Pro's points unchallenged. When he attempted to challenge them his position was weak. At one point he even absurdly claimed that the role of judges does not concern justice. Pro deftly deflected this claim. Con then attempted to use Pro's deflection to claim victory over the point. Pro should have used more examples. Con did not use any. It is on theory alone (the contention that a judge's role is to impose justice) that Pro wins. He should have used more examples to support his thesis. Con should have built an offensive case of his own instead of merely responding to Pro's points.

Source:
Pro - Pro utilized several relevant sources while Con used none.
Posted by tmhustler 8 years ago
tmhustler
conduct- con because of pros insistence on offensive terms

spelling and grammar tie

arguments con because pros arguments were often contradictory

sources con because very few of pros sources actually supported his resolution
Posted by dogparktom 8 years ago
dogparktom
I specifically decided not to title the debate "Judicial Activism" because I expect my opponent to use the concept as an argument.

Second, the title reflects the real life context from which the question arose. Did you watch the Sotomayor confirmation hearings? I did and I was struck by the dumb questions that were put to her.

Ifm I were a senator on the judiciary committee I would compile a list of "general jurisprudential questions" to ask the nominees.
Posted by UsafRevenged 8 years ago
UsafRevenged
Ill post an argument tomorrow.
Posted by wjmelements 8 years ago
wjmelements
Just title the debate "Judicial Activism".
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Vote Placed by nheilbrun 7 years ago
nheilbrun
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