The Spleuncean Paper

The legal philosophy of deciding the case based on the facts and not emotions as expressed, to varying degrees, by justices Tatting, Handy, and Keen were the most persuasive for me.   Justice Tatting’s arguments were the best of the group.   The others add needless levels of complexity to the issue because they are unable to divorce themselves from the issues and decide based on the logic.   This is the only variable option in this case.   Handy, while absolutely correct in his observation that the difficulties in deciding the case were based on the inability of his brother justices to divorce themselves from their feelings and decide the case on the commonsense facts as they were presented to the court falls shorts of providing a compelling solution to the problem.   When Handy adopts this course he becomes guilty of a variant of Foster’s absolute certainty that he knows how the law was intended to function.   Instead of rewriting the law so that it delivers the intended results; Handy uses personal experience, which may not mirror that of the predecessors on whose work he is ruling.   Thus he may be reaching wrong conclusions because he starts out with flawed premises.   He is certainly guilty of judicial activism.   Truepenny advocates allowing public opinion be allowed to guide the court.   Foster wants to write legal fantasy as an excuse for judicial activism.   Keen asks for fidelity to the law, but wants to tell lawmakers that they need to consult closely with the courts on important matters.   This is a variant of judicial activism.   The reasoning presented in his argument does not allow for any mercy to be extended to the defendants should there be any logical or legal justification for leniency.   According to his reasoning the statute must be interpreted literally and as written the statute permits no exceptions.   So, the law demands execution regardless of whether a case can be made for leniency.   It is this sticking point that creates all the difficulties in this... [continues]

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