Good question

Monday, August 21, 2006
Law Blog » Considering Forum Shopping: "A debate about forum shopping — and any implication that different judges decide cases differently — raises a sticky question, writes Glater: “If the same facts, presented to different judges in different courts can lead to different outcomes, then can anyone maintain confidence that a particular outcome was just?”"

3 comments:

Morgan said...

It seems to me that we could accept some variability in outcomes as still falling under the general heading "just" (justice being not directly observed, and presumably only approximated by a judge's decision). Forum shopping undercuts that, because it implies systematic differences, rather than random ones.

The other problem in this case is that there is a system by which judges are supposed to approximate justice (the whole legal reasoning thing that the people who know something about the matter have been arguing), and it appears not to have been used in this case.

Rick Ballard said...

Morgan,

Had Diggs the Dimwitted been capable of delivering an opinion utilizing a defendable level of sophistry, would it make a difference with regard to venue shopping? The ACLU doesn't really give a damn about Diggs - they want the Sixth Circuit and the reason they want it has nothing to do with its "experience" with the issues. Both the Fourth Circuit and the DC Ciruit have more experience with the security issues involved.

It will be very interesting to see to whom this case is assigned in the Sixth. That's where the "judge shopping" will occur.

As to venue shopping and "justice" (or the public perception thereof), it's really a matter of very limited interest except to theorists. A practicing attorney who does not weigh the advantage of potential venues in which to engage in the advocacy for which he was hired is probably poor and lonely - and deservedly so.

Morgan said...

Rick:

If by "defendable level of sophistry" you mean that it was in line with precedent and logical/well-reasoned, then yes, that would make a difference with regard to venue shopping. It would mean that the decision was arrived at in the right way, adhering to the safeguards that are in place to minimize bias. Judges don't have special insight into justice; that's why they are supposed to play by the rules in attempting to dispense it.

Also, I agree that a good attorney needs to look for every advantage, but that hardly makes me happy that shopping around for judges with a systematic bias is an effective way to do it.