*grin*

[sisyphusshrugged]

Dwight on Liberty Law School, judicial activism and the bar exam

...Is it ironic that a professor at Jerry Falwell's law school would be advocating for pure judicial activism? For a Judge to decide on his own to ignore the legislative enactments of a given state just because of his personal assessment of what the law should be is the core criticism people like Falwell make against what they view as judicial activism. I guess it is not activist for a judge to impose his own view of the law if that view conforms to Falwell's.

Perhaps though, Professor Tuomala is speaking of a greater law. Perhaps he is speaking of a form of natural law or a law as provided by the creator. What then, would be the sources that federal judges are to consult to find the law to be applied in diversity cases? The Ten Commandments, perhaps? Maybe the Old and New Testaments? I think that is a fair conclusion given that Dr. Falwell is promising that if graduates of Liberty University Law "wind up as judges, they'll be presiding under the Bible."

I believe that there is great wisdom in the Bible. Nonetheless, it seems that such wisdom is not particularly relevant to many of the decisions that a federal judge deciding diversity cases has to make. What exactly, is the Ten Commandments' take on the effect of contributory neglience in a personal injury action? What does the New Testament have to say about minority shareholder rights in a closely held corporation? Does the Old Testament address the issue of the statute of limitations in a libel case?

Professor Tuomala is surely correct when he notes that his view of Erie is outside the mainstream of legal thought. Indeed, it is outside the orbit of Saturn...

Comments

[jmhm.livejournal.com]

See, that ought to be interesting, because surely Liberty Law School and its partisans will be fighting to end the hegemony of the ABA, which is where the rubber hits the road for all of those lawyers who find the current political climate and the current monopoly on the practice of law convenient.

[jmhm.livejournal.com]

Yeah, but wouldn't it be fun to watch all the, um, trial lawyers who have demagogued their way to fame and fortune bashing trial lawyers defending the trial lawyers against Jerry Falwell's attempt to bring the faith-based paradigm to trial lawyering?

I know I'd enjoy it.

[xiphias.livejournal.com]

For the record, the Old Testament does have a particularly good section on tort law. Well, the Talmud does, and its justification is a couple lines in the Old Testament. Tractate Bava Kama in the Talmud is all about limits of liability in various situations involving attractive nuisance, public-vs-private thoroughfares, and so forth. Much of modern tort law comes from it, indirectly.

[jmhm.livejournal.com]

I'm actually (from a position of relative ignorance) a big fan of talmudic reasoning.

I think it's great that there's a religion where you're supposed to question authority and expect reasonable answers.

Plato and I, we don't dine.