Non-Lawyer Judges

MY ASSUMPTION: Con criticises my assumption, which is: "Deliberative bodies perform their purposes better when they have a diverse membership." She states: " I propose that this is only true of SOME bodies, and that judges are not one of them. For instance, would an NFL team want players ..." Further, she states: "Lawyers (and thus judges) have particular and special training that allows them to perform their job in ways that non-lawyers might not recognize on the surface." Con's citing the NFL is not relevant. An NFL team is obviously not a deliberative body as the definition of the term plainly implies.1 A team's members do not deliberate over the next play. The play is called by the coach, the offensive coordinator, or the quarterback. Regarding "particular and special training," please note that I referred to "... other non-lawyer scholars with a special interest in the law,..." (Walter Berns' "research areas" are listed as political philosophy, constitutional law, and legal issues) Scholars pursue their special interests usually through independent study. However, they also frequently audit some of the courses in their discipline of interest given by the department in their university. For example, a philosopher in X-University might audit a course in evidence given in the law school of X-University. Further, most lawyers who become judges by election or appointment take courses at The National Judicial College, http://www.judges.org... , at their earliest opportunity, often before they even start work as a judge. If a new-lawyer/judge can take some courses (evidence, trial procedure, criminal law, etc.) at the College, so too can a new-non-lawyer/judge. QUESTIONS: Con, what bodies are deliberative bodies and what distinguishes them from a court which you say is not a deliberative body? Next, Con states: " So, thus far I have negated the supposition that specific diversity is beneficial in all group situations or levels, such as high levels of the criminal justice or legal system of the United States." But the assumption or supposition actually states: "Deliberative bodies perform their purposes better when they have an diverse membership." It doesn't state "All Deliberative bodies perform ...". Further, the assumption is stated relative to courts, not relative to "all group situations or levels," as Con states. Finally, regarding the notion of 'diversity', note that I only posited the potential non-lawyer judge as a person who is (1) a scholar, (2) with a special interest in law, and (3) who is intellectually qualified. A three-judge court consisting of two lawyer/judges and a Judge Martha Nussbaum would achieve diversity on several levels. I respectfully contend that Con has not negated the assumption. CON'S CLAIMED REBUTTAL: 1. Con supposedly repeats my argument: "The perspective of a non-lawyer judge will enhance the jurisprudence of a court." But, I actually stated: "(1.) The learning and perspective of a non-lawyer judge will enhance the jurisprudence of a court." Next, Con states: "Pro contends that one's philosophy or ability to interpret the law makes them a SUPERIOR candidate than a lawyer to act as a judge." (EMPHASIS ADDED) I have NOT MADE THAT CONTENTION. Nowhere have I claimed, either explicitly or implicitly, that a non-lawyer scholar would be SUPERIOR to a lawyer in serving as a judge. I have simply claimed that some qualified non-lawyer scholars would "ENHANCE the jurisprudence of the court." Nor have I claimed that Walter Berns would necessarily be SUPERIOR as a judge in comparison to a lawyer. Rather, I have proved that on the question of the constitutionality of capital punishment, Berns' interpretation of the constitution is superior to the interpretation of Justice Brennan.2 Unlike Berns' 'judicial restraint,' I would argue that Brennan was a 'judicial activist' on the issue. Indeed, on capital punishment, Brennan and Marshall became political ideologues on the issue! I believe that I have, above, answered Con's statement: "Now how can one know how to properly oversee a process of the legal system if they are not educated in the law? Being a scholar of philosophy or political science as my opponent has suggested does not demonstrate an aptitude for any legal knowledge or disciplinary know-how, etc." 2. A non-lawyer scholar or judge can get a minimal competence in a new area of law through independent study. I am a lawyer. http://www2.mnbar.org... I knew nothing about the law relating to 'legal malpractice' before I read the treatise. Before meeting the clients (to get the facts), I needed to know what basic elements were neccessary in a claim for legal malpractice. That I was successful before a jury in the trial court, before the court of appeals, and the supreme court, attests to the fact that a person can obtain a minimum competency in an area of law through diligent independent study. Next, Con states: " I would agree that one can defend themselves once they know or read up on the law; however, there's no guarantee that one would be interpreting the law properly - which is what a judge is for." Con's phrase "there's no guarantee that one would be interpreting the law properly" suggests that she views constitutional interpretation as more of a SCIENCE than as an ART. But, see the various approaches to interpretation that are actually used in deciding cases. http://en.wikipedia.org... Rather than one intellectual act of "interpreting the law properly," the interpretive act comes in different forms. 3. Martha Nussbaum is indubitably qualified to serve as a Supreme Court Justice. Con INACCURATELY states: " To become a judge, you must pass your state's bar exam and gain experience practicing law" AND "The bar is an examination to determine whether or not a candidate is qualified to practice law in a given jurisdiction." The bar examination is a test of the examinee's KNOWLEDGE in the basic areas of law, such as contracts, torts, criminal law, evidence, etc. (not 'legal malpractice'). When I took the Minnesota examination, it consisted of 16 essay questions to be answered over two days. In law school, I took the 16 courses that corresponded to the 16 bar exam questions plus some electives. The bar examiners can test an examinee's KNOWLEDGE of the law, but not his or her "experience practicing law" because no examinee has actually "practiced law". One could say that 'knowledge of the law' exists in the theoretical order of reality, whereas 'experience practicing law' exists in the practical order of reality. I have shown that Con views judging as more of a science than an art. Accordingly, she prefers the specialist (a lawyer) to the generalist (a non-lawyer scholar with a special interest in law). And, thus, she opposes a diverse membership on a court. From these understandings, I posit that Con MUST answer NO to the following question: "Does a judge, in the interest of justice, have the inherent authority to not follow the law (the specific law that incontestably applies to the case) in a particular case so as to prevent an outrageous and unconscionable result and to render justice to the litigants?" http://www.debate.org... A NO answer is consistent with her scientific orientation toward the law and her view of a certainty of interpretation in the law. BACK TO YOU, CON. __________________________________ 1. Deliberative - http://dictionary.reference.com... 2. http://en.wikipedia.org...