We discussed the opinions of Tatting, Keen, and Handy.
When we returned to Tatting’s opinion, we mostly discussed his understanding of the law rather than his criticisms of Foster.
I think that Tatting is meant to illustrate the problems with what Hart called “formalism,” the idea that the role of a judge is to apply rules to cases (Hart 1958, 608). Tatting is looking for a formula or very specific statute that would enable him to decide the case (Fuller 1949, 631). When he cannot find such a thing, he runs into trouble.
The question about the role of justice in Tatting’s thinking is especially interesting. I agree with Isha. On the one hand, you would think it wouldn’t make any difference to him. On the other hand, it sure seems to play a significant role in his indecision. Maybe Fuller’s idea is that it’s very difficult for a human judge to think like a formalist.
Tatting is undoubtedly the hardest worker on this court. He found legal citations to support Foster’s opinion that Foster did not know about! But he is reluctant to evaluate the different legal sources he finds and he is completely at sea about what to do with his moral convictions about the case. Consequently, he cannot reach a decision.
Keen’s positive view is that when a statute has a plain meaning, that is what judges ought to use. (As with Truepenny, we don’t know what he would do with a case in the penumbra of a law.)
When you look at the dictionary defintion of “willfully,” you can find different meanings, some of which suggest they are guilty and others suggest they are not. Does this show the statute lacks a plain or natural meaning? Maybe not. Everyone on the court seems to think the plain meaning is pretty obvious. We had an extensive discussion of the question and split fifty-fifty on whether the Spelunceans would be said to have acted willfully under definition five.
The self-defense exception is awkward for Keen. There is no way that it is in the plain meaning of the statute but the courts have clearly recognized the exception for years and Keen accepts it. All he says is that it cannot be extended in the way that Foster wants.
In the end, Keen is willing to say that the Court should take even bad laws literally on the grounds that doing so would force the legislature to revisit and improve them.
Most people agree with Zach that Handy is unprincipled in a bad way, but Izzy and I have a fondness for him. In any event, Handy thinks judges should use common sense and popular opinion. Governing wisely is more important than legal reasoning for him.
My own opinion is that he should have jettisoned the part about popular opinion. What would he do if the population wanted to execute a clearly innocent person? I hope he would say no. If so, common sense trumps popular opinion. And if not, well, so much the worse for Judge Handy’s opinions.
That still leaves Riley’s very important question unanswered: whose common sense are we talking about? Handy is very much assuming that he knows when it is obvious what the correct decision is. I suppose he has his polls to serve as a reality check. Still, I feel the force of Riley’s point.
Handy’s colleagues have already made the case that judges should stick to their institutional roles. In their view, governing wisely is a job for the government as a whole, judges are only one part of the government with a specific task to play, and they should stick to their task.
On the other hand (sorry!), Handy tells us that they know this is not actually the way it is going to work. If justice is to be done, they are going to have to do it.
One last remark. Almost everyone in this society believes that it would be wrong to execute the explorers. Certainly everyone on the court believes this. But no one on the court agrees about the law. One common objection to mixing law and morality is that the law should be predictable and interjecting morality makes it unpredictable. The opposite seems to be true in this case.
We had ten votes for guilty and seven for not guilty with sixteen students voting. Either your vote counter is off or someone voted twice.
It will be interesting to see if anyone changes their mind in the course of writing the paper!
Update: the papers on this topic broke six to four in favor of not guilty (April 1, 2019, no fooling).