November 3, 2005
CRACKING THE CODE:
Alito's Dissents Show Deference to Lower Courts (ADAM LIPTAK and JONATHAN D. GLATER, 11/03/05, NY Times)
Cass R. Sunstein, a law professor at the University of Chicago, reviewed 41 of Judge Alito's dissents and said he had been able to code about half of them in ideological terms."Somewhere between 100 percent and 85 percent are to the right of the majority, depending how you count," Professor Sunstein wrote in an e-mail message.
Ah, science.
MORE:
On the Contrary (Cass Sunstein, November 1, 2005, Washington Post)
"Deference to Lower Courts" -- in legal jargon lower court decisions are called, I believe "itty-bitty precedents."
Posted by: pj at November 3, 2005 12:48 PMSound good to me. Just make sure those people keep b****ing and moaning about Alito being pro-gun, I havn't gotten a direct mailing from the NRA for about two weeks now, so I'm still waiting for the "Write to Arlwen Spector." message.
Posted by: Lou Gots at November 3, 2005 2:06 PMPJ: "Deference to lower courts" is something totally different from deference to precedent.
In most instances, an appellate court is required by its standrad of review to be deferential to factual findings made by the trial court, on the theory that the trial judge can observe the demeanor of witnesses and is in a better position to make credibility determinations than an appellate panel reading a transcript. Similarly, discretionary rulings made by a trial judge are subject to review for "abuse of discretion," which means that they'll be upheld if rational, even though the appellate panel might have decided the issue differently. Think of these as "no second guessing" rules.
Posted by: Mike Morley at November 3, 2005 2:31 PM