Friday, November 10, 2006

Make a real decision, pansy

Lately, in my spare time, I've been reading a lot of cases from around the country on various topics (torts, criminal law, contracts, and property mostly; I gave up my civ pro habit), and I have come to a startling conclusion. No appellate judge ever really decides anything.

Here's why: almost every time I read a "significant" case, the judge will go on and on about something, and then they'll say that none of it matters. I recently read a case from Oklahoma where the judge said "The State concedes that defendant's act was not an actus reus." Then (guess what) the State lost. Hmm. Crime = actus reus + mens rea. If you take either of those elements out, then there is no crime. "The State concedes that it hasn't proven all its elements." Thus, no real decision that means anything by the Supreme Court of Oklahoma (Court of Criminal Appeals, actually).

I read a case in civil procedure where the Supreme Court (not of Oklahoma, but of the United freakin States) goes on and on and on about how important it is that the losers conceded this point at oral argument. Then in the notes after the case, the textbook reprinted part of the record of the oral arguments, and I tell you what, I'm no Supreme Court justice, but it sure didn't sound like a concession to me. Sounded more like "I don't want to make a real decision, so we'll just pretend that the guy I want to lose conceded the most crucial point. Bwahahaha."

Talk about a decision in search of a rationale.

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