The Instigator
dogparktom
Pro (for)
Losing
40 Points
The Contender
Danielle
Con (against)
Winning
43 Points

Non-Lawyer Judges

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Post Voting Period
The voting period for this debate has ended.
after 16 votes the winner is...
Danielle
Voting Style: Open Point System: 7 Point
Started: 11/28/2009 Category: Politics
Updated: 7 years ago Status: Post Voting Period
Viewed: 9,051 times Debate No: 10264
Debate Rounds (3)
Comments (43)
Votes (16)

 

dogparktom

Pro

NON-LAWYER JUDGES

Resolved, that non-lawyers should also serve as judges on courts because they will enhance the court's administration of justice.

INTRODUCTION:

For most trial courts of general jurisdiction and appellate courts, the constitutions and statutes establishing such courts provide that the judges shall be "learned in the law". Being "learned in the law" is currently defined or interpreted to mean graduation from an approved law school, passing a bar examination, and being formally admitted to the practice of law in the courts. Thus, judgeships are currently reserved exclusively for lawyers. 1

Some believe, however, that other non-lawyer scholars with a special interest in the law, such as some philosophers, historians, political scientists and others, are intellectually qualified to serve as judges. They also should be legally eligible to serve as judges.

1 http://courts.state.ar.us... http://sites.state.pa.us... (Art. V, Sec. 12 ) In Re Scarrella, 221 N.W.2d 563 (Minn. 1974) (Holding that "learned in the law" means admitted or entitled to be admitted as an attorney-at-law in the state)

DEFINITIONS:

enhance. 1. To make greater, as in value, beauty, or effectiveness; augment. 2. To provide with improved, advanced, or sophisticated features. http://www.thefreedictionary.com...

ASSUMPTIONS:

Deliberative bodies perform their purposes better when they have an diverse membership.

ARGUMENTS:

(1.) The learning and perspective of a non-lawyer judge will enhance the jurisprudence of a court.

In his prime, political science professor Walter Berns would have been an excellent appellate judge. 1 He could have clarified the Supreme Court's philosophy on capital punishment, especially, for example, regarding the rigid thought on capital punishment held by Justice William J. Brennan, Jr.

Brennan held absolutely that capital punishment was unconstitutional. 2 Berns criticized Brennan's absolutist position as obviously fallacious. He pointed out that the Founders explicitly considered the subject of capital punishment because the subject is mentioned in the Constitution. They could have prohibited capital punishment in all cases. They did not. 3 Berns' criticism is set forth in his excellent book, "Taking the Constitution Seriously", which I have read. 4

(2.) A non-lawyer scholar or judge can get a minimal competence in a new area of law through independent study.

Some lawyers on Minnesota's Iron Range referred a husband and wife to me for the purpose of filing bankruptcy. However, the lawyers asked me to review the facts regarding legal malpractice law. They thought that the husband and wife might have a claim against their former lawyer. I knew nothing about the law on legal malpractice.

I called the husband and wife and made an appointment. In the meantime, I obtained the leading treatise on legal malpractice to study before I met with them. 5 We subsequently sued, obtained a jury verdict, and successfully defended the verdict in the appellate courts. The final damage amount received was $160,000. The clients avoided filing bankruptcy by paying all their debts. 6

(3) Martha Nussbaum is indubitably qualified to serve as a Supreme Court Justice.

Her credentials are extraordinary and outstanding. 7

_______________________________
1. http://www.aei.org... ; http://en.wikipedia.org...

2. "Brennan was also less interested in stare decisis or the avoidance of "absolutist" positions where the death penalty was concerned. Brennan and Thurgood Marshall concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled that the death penalty was constitutional four years later. Thereafter, Brennan or Marshall took turns, joined by the other, in issuing a dissent in every denial of certiorari in a capital case, and from every decision in a case which the court did take which failed to vacate a sentence of death.[13] " http://en.wikipedia.org....

3. Amendments V and Vi; Art.I, Sec. 10, Cl. 1 (capital punishment not excluded); Amendment VIII (not a cruel and unusual punishment); http://www.usconstitution.net... ;
"(c) The existence of capital punishment was accepted by the Framers of the Constitution, and for nearly two centuries this Court has recognized that capital punishment for the crime of murder is not invalid per se. Pp. 176-178. [428 U.S. 153, 155]" http://caselaw.lp.findlaw.com...

4. http://www.amazon.com...

5. Legal Malpractice by Ronald E. Mallen was only one volume,
http://west.thomson.com...

6. Gillespie v. Klun, 406 N.W.2d 547, (Minn. App. 1987), pet. for rev. denied (Minn. July 9, 1987)

7. http://www.law.uchicago.edu...
Danielle

Con

[Introduction]

I accept Pro's definitions; however, reject his assumption that deliberative bodies perform their purposes better when they have a diverse membership. I propose that this is only true of SOME bodies, and that judges are not one of them. For instance, would an NFL team want players who fundamentally knew how to play football via experience and special training (i.e. pro players), or would they want someone like me who technically knows how to play the game, but probably wouldn't be good at actually winning one at the professional level? The answer is obvious and it explains my point: Just because some people might know the laws, doesn't necessarily mean they know how to interpret them, implement them, or utilize the system and precedents as well as know when the lawyers are getting out of line. Lawyers (and thus judges) have particular and special training that allows them to perform their job in ways that non-lawyers might not recognize on the surface.

Additionally, while diversity is often cited as a good thing when it comes to something like the appellate court, it must be noted that diversity does not include the devaluing of an in depth education and understanding of the law at a position of that level. Instead, it might mean that instead of the last 4 appointed judges having graduated from Harvard or Yale, that maybe they might choose someone who graduated from a school in the south west, for example [1]. Again, I don't think anyone would agree that a lack of formal legal training and probably experience would be something one should forfeit or not be expected as a judge. President Obama represents "change" and "diversity" but he still has an prestigious education. So, thus far I have negated the supposition that specific diversity is beneficial in all group situations or levels, such as high levels of the criminal justice or legal system of the United States.

REBUTTAL:

1. The perspective of a non-lawyer judge will enhance the jurisprudence of a court.

Pro contends that one's philosophy or ability to interpret the law makes them a superior candidate than a lawyer to act as a judge. However, this is undergoing the assumption that lawyers don't have these same abilities. Yes, a lawyer plays many roles in the legal system and often that is to exploit the law, manipulate the law, explain the law or enforce the law. However, when one becomes a judge, their role entails different requirements and it is assumed that a judge will adapt to meet those needs. For instance, any appointed appellate court judge should be able to clarify a law's philosophy just as well as Walter Berns. What makes Walter Berns superior?

Moreover, even if one might have a good eye for the law or be able to make good contributions to the law, that doesn't mean that they should be judges. According to one government website, "When a judge convenes a case for trial before a jury, his or her mission is to organize, facilitate, and oversee a process that will render an outcome based on a fair and impartial assessment of the evidence in the case" [2]. Now how can one know how to properly oversee a process of the legal system if they are not educated in the law? Being a scholar of philosophy or political science as my opponent has suggested does not demonstrate an aptitude for any legal knowledge or disciplinary know-how, etc.

2. A non-lawyer scholar or judge can get a minimal competence in a new area of law through independent study.

To demonstrate this point, Pro includes a real life example of a lucky scenario in which he was able to win a court case without any formal legal training. However, being your own representative in court (lawyer) is much different than being a judge. I would agree that one can defend themselves once they know or read up on the law; however, there's no guarantee that one would be interpreting the law properly - which is what a judge is for. As I said, understanding legal precedents and having an idea of what is kosher or not during a court case is of utmost importance in any trial if it is to remain objective and in accordance with constitutional standards.

3. Martha Nussbaum is indubitably qualified to serve as a Supreme Court Justice.

While Nussbaum undoubtedly has an extremely impressive resume and many of the qualifications necessary to be a judge, she doesn't have the primary one - a license to practice law. To become a judge, you must pass your state's bar exam and gain experience practicing law. Passing the bar = becoming a lawyer. The bar is an examination to determine whether or not a candidate is qualified to practice law in a given jurisdiction. While people may represent themselves in trial, who would represent the State? The government has set the standard of what constitutes as an official lawyer or what the proficiency for practicing law is in different areas. And because a judge's responsibility is to uphold the rules and regulations of the government, then it logically follows that one must also have to pass the bar examination (become a lawyer).

Back to you, Pro.

[1] http://sonoranalliance.com...
[2] http://www.america.gov...
Debate Round No. 1
dogparktom

Pro

MY ASSUMPTION:

Con criticises my assumption, which is: "Deliberative bodies perform their purposes better when they have a diverse membership." She states: " I propose that this is only true of SOME bodies, and that judges are not one of them. For instance, would an NFL team want players ..." Further, she states: "Lawyers (and thus judges) have particular and special training that allows them to perform their job in ways that non-lawyers might not recognize on the surface."

Con's citing the NFL is not relevant. An NFL team is obviously not a deliberative body as the definition of the term plainly implies.1 A team's members do not deliberate over the next play. The play is called by the coach, the offensive coordinator, or the quarterback. Regarding "particular and special training," please note that I referred to "... other non-lawyer scholars with a special interest in the law,..." (Walter Berns' "research areas" are listed as political philosophy, constitutional law, and legal issues) Scholars pursue their special interests usually through independent study. However, they also frequently audit some of the courses in their discipline of interest given by the department in their university. For example, a philosopher in X-University might audit a course in evidence given in the law school of X-University. Further, most lawyers who become judges by election or appointment take courses at The National Judicial College, http://www.judges.org... , at their earliest opportunity, often before they even start work as a judge. If a new-lawyer/judge can take some courses (evidence, trial procedure, criminal law, etc.) at the College, so too can a new-non-lawyer/judge.

QUESTIONS: Con, what bodies are deliberative bodies and what distinguishes them from a court which you say is not a deliberative body?

Next, Con states: " So, thus far I have negated the supposition that specific diversity is beneficial in all group situations or levels, such as high levels of the criminal justice or legal system of the United States."

But the assumption or supposition actually states: "Deliberative bodies perform their purposes better when they have an diverse membership." It doesn't state "All Deliberative bodies perform ...". Further, the assumption is stated relative to courts, not relative to "all group situations or levels," as Con states.

Finally, regarding the notion of 'diversity', note that I only posited the potential non-lawyer judge as a person who is (1) a scholar, (2) with a special interest in law, and (3) who is intellectually qualified. A three-judge court consisting of two lawyer/judges and a Judge Martha Nussbaum would achieve diversity on several levels.

I respectfully contend that Con has not negated the assumption.

CON'S CLAIMED REBUTTAL:

1. Con supposedly repeats my argument: "The perspective of a non-lawyer judge will enhance the jurisprudence of a court."

But, I actually stated: "(1.) The learning and perspective of a non-lawyer judge will enhance the jurisprudence of a court."

Next, Con states: "Pro contends that one's philosophy or ability to interpret the law makes them a SUPERIOR candidate than a lawyer to act as a judge." (EMPHASIS ADDED)

I have NOT MADE THAT CONTENTION. Nowhere have I claimed, either explicitly or implicitly, that a non-lawyer scholar would be SUPERIOR to a lawyer in serving as a judge. I have simply claimed that some qualified non-lawyer scholars would "ENHANCE the jurisprudence of the court."

Nor have I claimed that Walter Berns would necessarily be SUPERIOR as a judge in comparison to a lawyer. Rather, I have proved that on the question of the constitutionality of capital punishment, Berns' interpretation of the constitution is superior to the interpretation of Justice Brennan.2 Unlike Berns' 'judicial restraint,' I would argue that Brennan was a 'judicial activist' on the issue. Indeed, on capital punishment, Brennan and Marshall became political ideologues on the issue!

I believe that I have, above, answered Con's statement: "Now how can one know how to properly oversee a process of the legal system if they are not educated in the law? Being a scholar of philosophy or political science as my opponent has suggested does not demonstrate an aptitude for any legal knowledge or disciplinary know-how, etc."

2. A non-lawyer scholar or judge can get a minimal competence in a new area of law through independent study.

I am a lawyer. http://www2.mnbar.org... I knew nothing about the law relating to 'legal malpractice' before I read the treatise. Before meeting the clients (to get the facts), I needed to know what basic elements were neccessary in a claim for legal malpractice. That I was successful before a jury in the trial court, before the court of appeals, and the supreme court, attests to the fact that a person can obtain a minimum competency in an area of law through diligent independent study.

Next, Con states: " I would agree that one can defend themselves once they know or read up on the law; however, there's no guarantee that one would be interpreting the law properly - which is what a judge is for." Con's phrase "there's no guarantee that one would be interpreting the law properly" suggests that she views constitutional interpretation as more of a SCIENCE than as an ART. But, see the various approaches to interpretation that are actually used in deciding
cases. http://en.wikipedia.org... Rather than one intellectual act of "interpreting the law properly," the interpretive act comes in different forms.

3. Martha Nussbaum is indubitably qualified to serve as a Supreme Court Justice.

Con INACCURATELY states: " To become a judge, you must pass your state's bar exam and gain experience practicing law" AND "The bar is an examination to determine whether or not a candidate is qualified to practice law in a given jurisdiction."

The bar examination is a test of the examinee's KNOWLEDGE in the basic areas of law, such as contracts, torts, criminal law, evidence, etc. (not 'legal malpractice'). When I took the Minnesota examination, it consisted of 16 essay questions to be answered over two days. In law school, I took the 16 courses that corresponded to the 16 bar exam questions plus some electives.

The bar examiners can test an examinee's KNOWLEDGE of the law, but not his or her "experience practicing law" because no examinee has actually "practiced law". One could say that 'knowledge of the law' exists in the theoretical order of reality, whereas 'experience practicing law' exists in the practical order of reality.

I have shown that Con views judging as more of a science than an art. Accordingly, she prefers the specialist (a lawyer) to the generalist (a non-lawyer scholar with a special interest in law). And, thus, she opposes a diverse membership on a court. From these understandings, I posit that Con MUST answer NO to the following question:

"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?" http://www.debate.org...

A NO answer is consistent with her scientific orientation toward the law and her view of a certainty of interpretation in the law.

BACK TO YOU, CON.

__________________________________
1. Deliberative - http://dictionary.reference.com...

2. http://en.wikipedia.org...
Danielle

Con

Re: Assumption

While I agree that the NFL was not a great example given my opponent's particular specification of deliberative bodies (whoops!), my same point still applies and I clarified it in the last round also -- just because diversity is good does NOT mean that the qualifications for a specific roles should be eliminated. As I said in the last round, while diversity is often cited as a good thing when it comes to something like the appellate court, it must be noted that diversity does not include the devaluing of an in depth education and understanding of the law at a position of that level. Instead, it might mean that instead of the last 4 appointed judges having graduated from Harvard or Yale, that maybe they might choose someone who graduated from a school in the south west, for example. Again, I don't think anyone would agree that a lack of formal legal training and probably experience would be something one should forfeit or not be expected as a judge. Diversity is good, but so is knowing the law.

Re: Scholars of the Law

Pro specifies that he thinks only scholars with special interests in the law should be able to judge. However, this begs the question: Then why not a judge? What exactly is the benefit of having a non-lawyer judge if the scholar judge knows everything about the law? The only difference, then, seems to be the completion of law school and a passing of the bar. In that case, I propose that a lawyer is more experienced and educated to be a judge BECAUSE they have that extra training and knowledge. Also, they're privy to one of the best teachers in life - experience. Law school and the bar exam exist to serve as foundations for an understanding of the law and to ensure that the person has a vast understanding of the complicated system. However, it is through actually BEING a lawyer that you learn the intricacies of the field.

Re: Pro's Question

Where did I ever say that a court was not a deliberative body? Please show me where I said that and I will clarify what I meant.

Re: Diversity on the Bench Contd.

Pro says 2 things here: The position of judge should only be extended to law scholars, and that a situation in which there were 2 lawyer judges and 1 non-lawyer judge should be acceptable. A few things -- First, just because one might have a text book knowledge of the law doesn't mean that they have all of the things a judge should have (I've said this before, but I'll reiterate it) including, perhaps, the know-how to make proper and balanced decisions i.e. without as much bias as possible. These are things you learn in law school and the like; there's no telling that a scholar would have this ability naturally or have attained the know-how to know what's right or wrong.

Second, while Pro gives us a nice scenario of 2 lawyer judges and 1 non-judge on a 3-judge bench, the fact of the matter is that the resolution is not specific and is therefore to be considered all-inclusive (especially since no clarifications were made in R1). As such, if you come to the conclusion that 1 non-lawyer judge can sit on a bench with 2 other lawyer judges, then you must also assume that 3 non-lawyer judges can sit together on the same bench. Further, if you come to the conclusion that non-lawyers are just as capable of being judges as lawyers, then this applies to trial court judges and ALL types of judges. How would the non-lawyer judge ensure that the court proceedings are fair and in accordance with the law? If they have all this knowledge, there's no reason why they can't just pass the bar.

Re: The learning and perspective of a non-lawyer judge will enhance the jurisprudence of a court.

Pro attempts to prove that I have manipulated his argument, by claiming that he didn't say that a non-lawyer judge would be *superior* to a lawyer judge but rather that it would *enhance* jurisprudence to have a non-lawyer judge. I apologize -- I assumed that if you believed 1 option would have an enhanced result over another option, that common sense explains that you believe 1 option is superior to the other (having lawyer only judges). Nevertheless, you'll notice that Pro hasn't given a response as to WHY non-lawyer judges are preferable. Instead, he gives us one example.

Pro says, "I have proved that on the question of the constitutionality of capital punishment, Berns' interpretation of the constitution is superior to the interpretation of Justice Brennan. Unlike Berns' 'judicial restraint,' I would argue that Brennan was a 'judicial activist' on the issue." First, nowhere did Pro PROVE that Berns' interpretation was superior. All he did was essentially say that he agreed with Berns over Brennan and that he likes his book. This establishes nothing for Pro's case. Second, just because Pro has given us an instance where a political science professor's ideology was superior to a Justice's (allegedly), it doesn't actually mean anything. I could say that *I* or other people on this site have better ideologies in certain government issues than the politicians; however, that doesn't mean that I should be running the government or that I'm more qualified to do so. Third, this example only pertains to law interpretation at the highest levels; meanwhile the resolution must apply to courts at every level.

Re: Independent Study

I'm sorry - I fail to see how this is really relevant and maybe that's why I've been confusing things. From what I gather, Pro is trying to portray how someone with no legal background in a particular area can read up on something and learn the law on their own. If that's the only point, then I have certainly addressed it in other areas of the debate. Plus, Pro is a lawyer, so this type of thing isn't exactly foreign to him.

Re: Martha Nussbaum and the bar.

Pro claims I said something inaccurate when I noted, "To become a judge, you must pass your state's bar exam and gain experience practicing law." He writes, "The bar examiners can test an examinee's KNOWLEDGE of the law, but not his or her 'experience practicing law because no examinee has actually "practiced law." That's fine... because I said to become a JUDGE you need experience practicing law (re-read the sentence) -- I didn't say you needed experience to pass the bar; that would be non-sensical. Indeed if you look up judge qualifications for various states such as this one [1], you'll see that passing the bar is one of them. Martha Nussbaum is a brilliant lady who has not passed the bar ad is therefore ineligible.

Critics note, "The stories of abuse of power, gross impropriety and ignorance in New York's tiny [non-lawyer judge] courts are rampant... Non-lawyer justices are not up to the task if we expect justice, as we understand it, to happen... Non-lawyer judges are unable to perform their function consistent with the law and Constitution. They simply don't know how, even if they are so inclined, and there is no quickie training solution that will provide these justices with the training and experience necessary to mete out justice in any cognizable fashion" [2].

Perhaps the very best reason to not appoint non-lawyer judges is that defendants are subjected to judges to decide their fates who may or may not be qualified to make those types of decisions; at least not decisions based on precedents (which you learn via formal legal training). Tax payers employ these judges, and defendants have no say in who judges their case (likewise, the prosecution has no say). I agree with lawyer Scott Greenfield when he says that it is fundamentally wrong to subject people to a system of justice with the same power as a legitimate system but neither the qualifications nor competence to fulfill its mission.

Out of characters, so back to ye!

[1] http://www.courts.state.md.us...
[2] http://blog.simplejustice.us...
Debate Round No. 2
dogparktom

Pro

In this final round I'll try to summarize my position with precision and clarity. To repeat the context of this debate, the proposition and the assumption involved are:

1. Resolved, that non-lawyers should also serve as judges on courts because they will enhance the court's administration of justice.

2. Deliberative bodies perform their purposes better when they have an diverse membership.

I believe that every court is a deliberative body. And every court should have a diverse membership. Further, that judging at law is more of an art than it is a science. Finally, I believe these statements to be true because I believe that the notion of perspectivism is fundamental and true. 1

I believe that a court with a diverse membership is more likely to issue a judgment that is closer to the concepts of justice and wisdom ("will enhance the administration of justice") than will a court that is without a diverse membership. And sometimes it can be argued that a judge's unique perspective on an issue can be crucial to the decision that the court finally issues.

For example, Justice Ruth Bader Ginsburg was the only female on the Supreme Court last June when it decided Safford United School District v. Redding 2 The issue was whether the strip search of 13 -year-old Savana Redding was unreasonable under the Constitution. When, during the oral argument, one of the male Justices expressed skepticism on whether the search of Savana was humiliating, Justice Ginsburg reminded him that he WAS NEVER A 13-YEAR-OLD GIRL! Her point made with emphasis, I would argue that thereafter the male Justices on the Court deferred (a tacit recognition of perspectivism) to Justice Ginsburg's judgment on the issue of humiliation because only Justice Ginsburg could really judge if the strip search was humiliating under the circumstances. In the case, all Justices, except for Justice Clarence Thomas, agreed that the strip search of Savana violated the Fourth Amendment to the Constitution. Only rarely in a case do eight of the nine Justices all agree on a crucial issue involved in the case.

Regarding non-lawyer judges ( non-lawyer scholars who have a special interest and learning in the law), I argue that they would contribute unique insights and knowledge from their discipline (history, philosophy, etc.) to the deliberations, decisions, and jurisprudence of the court. For example, assume that Martha Nussbaum was a Justice on the Court when Safford v. Redding was argued and deliberated. Can there be any doubt that she would have contributed a deeper understanding (probably a philosophical explanation of perspectivism relative to a 13 year-old-girl) to the discussion of the humiliation involved in the strip search? Can there be any doubt that if Nussbaum was on the Court, her participation would "enhance the court's administration of justice"?

I will now turn to CON'S R2 RESPONSE:

RE: ASSUMPTION:

Con states: "Diversity is good, but so is knowing the law." I agree. Where we disagree is the method that the prospective judge employs to qualify as "knowing the law." Con insists on graduation from law school, plus passing the bar exam, and perhaps some experience practicing law (a lawyer). I claim that the eligibility requirements should be expanded to include some "scholars with an interest in the law" (non-lawyers). What I have in mind is the student who becomes a scholar in his or her discipline (philosophy, political science, etc.), takes an interest in law, and the interest becomes his or her speciality within his or her particular discipline. Under my proposal, a Joel Feinberg, http://en.wikipedia.org... , would be eligible to be a judge. Under Con's rigid system, she would say "Sorry, Joel, but you and Martha must go to law school and pass the bar!"

RE: Scholars of the Law:

Con Asks: "What exactly is the benefit of having a non-lawyer judge if the scholar judge knows everything about the law?"

The benefit to the deliberations of the court is the non-lawyer judge's extensive knowledge in his discipline, i.e. of history, philosophy, political science, etc., and his or her perspective (from the discipline) on the law.

"RE: Pro's Question

Where did I ever say that a court was not a deliberative body? Please show me where I said that and I will clarify what I meant."

Con stated in R1: "I accept Pro's definitions; however, reject his assumption that deliberative bodies perform their purposes better when they have a diverse membership. I propose that this is only true of SOME bodies, and that judges are not one of them"

Relative to Con's statement, I asked: "Con, what bodies are deliberative bodies and what distinguishes them from a court which you say is not a deliberative body? "

As I interpret Con's initial comment on my assumption, she intended to say that: 'courts are deliberative bodies but they won't perform their purposes better if they have a diverse membership." Applied, she holds that the Supreme Court would not perform better with Justices Ginsburg and Sotomajor on the Court than an all male Supreme Court.

RE: Diversity on the Bench Contd.

Con states: "If they have all this knowledge, there's no reason why they can't just pass the bar."

I agree (I had not thought about the bar exam as an eligibility requirement for non-lawyer scholars) and see no unreasonableness in such a requirement, but I certainly don't think that they should have to sit through three years of classes in an approved law school just to become eligible to take a bar examination.

RE: Re: The learning and perspective of a non-lawyer judge will enhance the jurisprudence of a court.

All that I claim is that a non-lawyer scholar judge, such as Martha Nussbaum, would enhance the jurisprudence of a court because of her deep learning in her discipline, philosophy.

Professor Berns' position on the constitutionality of the death penalty was superior to Justice Brennan's position from the standpoint that the Court adopted Berns' position. It is now settled law that capital punishment is constitutional.

RE: Re: Martha Nussbaum and the bar.

Regarding Martha Nussbaum and non-lawyer scholars like her, my proposal is that they should be eligible to become judges without having to graduate from an approved law school. I had not thought about requiring them to pass a bar exam. I'm not opposed to that requirement. I'm quite sure that Nussbaum and the like scholars who I have in mind would have no problem preparing for, and successfully, passing a bar exam.

"justice of the peace" courts:

My proposal certainly does not mean a return to the justice of the peace courts. http://en.wikipedia.org...

Rather, my proposal actually involves expanding the legal eligibility requirements to permit a small SCHOLARLY ELITE to be legally eligible become judges.

Minnesota, my state, rightly abolished the justice of the peace courts in the 1970's by establishing a system of county and municipal courts staffed exclusively by lawyer/judges.

______________________________
1. "Perspectivism is the philosophical position that one's access to the world through perception, experience, and reason is possible only through one's own perspective and interpretation. It rejects both the idea of a perspective-free or an interpretation-free objective reality.... Perspectivism also highlighted the irreplaceable unique value of each individual and the value of differences and diversity." http://www.newworldencyclopedia.org... ; http://www.philosophyprofessor.com... ; Ironically, Con should be receptive to my 'argument for diversity from perceptivism' because Nietzsche is her favorite philosopher. See http://www.debate.org...

2. " After escorting 13-year-old Savana Redding from (SEE COMMENTS FOR HEADNOTE AND CITATION)
Danielle

Con

I'd like to thank Pro for this insightful debate!

So onto the final rebuttal...

I agree with Pro that a court is a deliberative body, and even that diversity to some degree can enhance performance. However, Pro has not proven that (1) diversity is always effective, (2) diversity would be beneficial in court and (3) that diversity should include a discrepancy in education. As I said in previous rounds, it would be one thing to utilize judges with different backgrounds, i.e. from different schools, parts of the country, gender or race related, etc. However I am not willing to forfeit education and experience in a certain area in terms of being a judge in a court of law.

Regarding interpretation of the law, Pro considers it an art and not a science. However, the law being an art implies a few things. First, that it is subjective - and not all laws are. Second, law interpretation is only a PART of judging. This does not address any of my other points about the duties of a judge. In addition to interpreting the law, judges are responsible for overseeing court cases... in other words, ensuring that the lawyers are acting appropriately and within the parameters of the law during a trial. One learns these laws and practices in law school, in which their knowledge is tested via the bar exam. If you'd agree that a judge should have this knowledge, then it logically follows that they should be expected to pass an exam testing this knowledge, i.e. becoming a lawyer via passing the bar.

Now, regarding Pro's example of Justice Ginsberg and the 13 year old girl, you'll notice that this argument is completely irrelevant considering the fact that Ginsberg was a lawyer before she was a judge. Further, just because Con might agree with her assessment of the case does not mean that it was the correct one. All he succeeded in doing was proving that different judges can have different perspectives. Again, that is an obvious reality that I do not oppose. Instead, I am unwilling to sacrifice knowledge about the law when it comes to being a judge in a United States court. One significant and widespread way to test a government's official of the law is to issue them a standardized test (the bar) which they are expected to pass. Once they do, they become a lawyer.

Next Pro writes, "Regarding non-lawyer judges (non-lawyer scholars who have a special interest and learning in the law), I argue that they would contribute unique insights and knowledge from their discipline (history, philosophy, etc.) to the deliberations, decisions, and jurisprudence of the court." Here you'll see that Pro is assuming that a lawyer cannot offer the same or similar perspectives. For instance, suppose I wanted to appoint a female Hispanic lawyer to be a judge in a case whereas Pro just wanted to appoint a Hispanic female. Who is to say that they wouldn't have a similar perspective except for one's credibility being enhanced by their law degree?

Further, Pro is also assuming that a scholar can offer insight that a lawyer can not. I'd like to reiterate the fact that lawyers ARE scholars in their own right. Most law schools accept applicants who did not major in pre-law [1], so they tend to have degrees in other areas - i.e. political science, psychology or the #1 law school major: philosophy. As such, we can assume that lawyers have a well rounded education and are proficient enough to have their own opinions and draw their own conclusions just as a scholar can. I see absolutely no advantage to judging that a scholar has over a lawyer. In addition to already addressing the issues regarding diversity, the point is that there is no evidence that a lawyer's opinion would be so different or in any way unqualified. On the contrary, a scholar who is not well versed in the law could easily make a judicial mistake or other error regarding the legalities of a case. And moreover, Pro failed to address my argument regarding said scholar's probable lack of knowledge regarding legal precedents or court etiquette.

Pro has reported that the benefit of having a non-lawyer judge would be their extensive knowledge in another field. While it's true that a lawyer might not have "extensive knowledge" in a particular area, i.e. history, the fact remains that using this premise alone is not enough to affirm the resolution. For instance, just because history knowledge might be applicable in one court case doesn't mean that it's relevant in other or most court cases. In that instance, you'd have a history master heading a trial - but not one who necessarily knows about the law. So, who is to decide who judges what debate and when and where that diversity is useful? And wouldn't that take up valuable time and thus money? It's far more realistic to have a history scholar or any scholar TESTIFY in a court of law so that their expert opinion is heard and conveyed. I would absolutely agree to that; however, deny that they should be responsible for making the final ruling decisions. The purpose of being a judge - which Pro should know - is NOT to implement one's own personal opinion in court cases. Instead, it's to provide a fair and impartial trial on the basis of what the law says - not what you think it should say.

Regarding the bar exam, Pro says that he doesn't think one should have to sit through 3 years of law school in order to take the test. I would tend to agree, seeing as how I consider myself pretty well versed in the law and apt to make legal decisions. However, that's only because I don't know any better. It is widely agreed upon in any description of law school that it is there one learns how to "think like a lawyer." Thinking like a lawyer should be a prerequisite to thinking like a judge. If thinking like a lawyer implies learning how to properly use logic and evidence to reason a side of a given case, then I believe this particular aspect of education to be important.

-- CONCLUSION and RE-CAP --

Diversity is undoubtedly important; however, diversity should not include a lack of education or proficiency in terms of being a judge. While it's true that scholars indeed have particular areas of expertise, there's no reason why they cannot contribute their input via testifying their expert opinion. In that way, their insight is acknowledged but they are not given power over a court which they may know little about. Attending law school and passing the bar is a way to ensure that a judge is knowledgeable in areas of the law whereas a scholar may not be. A judge exists not only to interpret the law, but to ensure that the laws are being followed.

You'll note that Pro never addressed my important contention regarding the defense nor prosecution having no say in who is hearing the case. In other words, it's not far to tax payers (and defendants, especially) to have a random scholar overseeing some cases; especially in situations where it could impact the case. If the judge messes up - which is likely to happen - it means a handful more appeal cases, which would only hurt the already over-crowded court system. A way to ensure that one has the proficiency to head a court is by earning a law degree and passing the bar. Sure, anyone could give you medical advice, but wouldn't you feel more comfortable getting advice from a licensed doctor? That logic is precisely why tax payers deserve a judge whose proficiency in the law has been tested explicitly.

Law school teaches one to think like a lawyer. A judge should be privy to this way of thinking in order to better determine the proper outcome of a case. There has been no evidence that a lawyer would lack any knowledge a scholar would have; for instance a judge can just as easily know as much about history as a scholar of history. As such, I am in favor of expanding judging requirements, but not in favor of diminishing them.

Thanks again for the debate!

[1] http://www.abanet.org...
Debate Round No. 3
43 comments have been posted on this debate. Showing 1 through 10 records.
Posted by comoncents 7 years ago
comoncents
Tough battle!
Posted by Vi_Veri 7 years ago
Vi_Veri
My babies XD
Posted by Vi_Veri 7 years ago
Vi_Veri
My babies XD
Posted by Danielle 7 years ago
Danielle
Wow, that is a beautiful dog! Duchess can catch balls and frisbees in the air too and she loves it. She's obsessed with being active and outdoors which was always sad considering we lived in NYC and there wasn't much greenery. Whenever we go somewhere with a lil bit of open space, she goes nuts (so we try to take her to the park a lot). She's 78.8 lbs and Duke is 70.
Posted by daniel_t 7 years ago
daniel_t
@theLwerd: Good looking dogs. Tsula (my german shepherd/sheltie mix) does that digging thing just like Duchess, but she has no interest at all in fetching things. Zoe (my lab/basset mix) does all the fetching and can even catch a Frisbee or ball in the air.

Both of my dogs are 50 lbs., but Tsula is much taller at about 21 inches at the shoulder, while Zoe is only 16 inches at the shoulder.

My wife maintains a page for Zoe http://www.myspace.com...
Send a friend request to see both of my dogs.
Posted by Danielle 7 years ago
Danielle
Whoops - neither of them any justice*
Posted by Danielle 7 years ago
Danielle
And I should mention that this video does neither of them absolutely no justice lol they have very distinct and awesome personalities, which is one of the features I love about most big dogs. Duchess is extremely smart, and very athletic (but she's old so her legs and catching are going downhill as you can see...) and Duke is just the most adorable and affectionate thing ever. They know commands, a few tricks, and Duchess would do things like ring the doorbell if she wanted to come inside (no joke - she figured this out when she was younger at my dad's house). She also wakes us up every morning and knocks (or scratches) on the bedroom door with her paw to wake us up and tell us that she needs to pee. They're both completely attached to my gf and I also. They literally follow our every move; if we're hanging out somewhere, they both lay right under us or right next to us and follow us around the house. They sleep in the same room as us. Etc. I just love love love them <3
Posted by Danielle 7 years ago
Danielle
Lol here's a few random shots I have:

http://i710.photobucket.com... -- Duchess
http://i710.photobucket.com... -- Vi_Veri with Duke

And here's a random small video of Vi playing with them (from about a month ago)
Posted by dogparktom 7 years ago
dogparktom
Hey L,

People are demanding pictures of your dogs. http://www.debate.org...
Posted by dogparktom 7 years ago
dogparktom
With my small dog Jack, you macho folks make me feel like a wimp!
16 votes have been placed for this debate. Showing 1 through 10 records.
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