The Unruly Horse

Gareth Jones, in an old case comment in the Cambridge Law Journal: "It is, above all, questionable whether judges should be encouraged to ride the unruly horse of public policy, to balance a public interest in confidentiality against a public interest in disclosure."

Comments

[Theendoftheleft]

Good. Now do one on judicial review and why Marbury is a bad joke.

[Lee Moore]

As it happens I was musing on this very thing a couple of days ago.

Saddling up my exceptionally stable and well behaved horse that judicial discretion is not consistent with the rule of law, it seemed to me that where a judge is minded to, say, nix a contract's enforcement on the grounds that it is "contrary to public policy" or something like that, there ought to be an appeal to the guardians of public policy - the elected folk. Maybe the legislature of the relevant jurisdiction should appoint, perhaps annually, a "Special Juror" to whom a yea or nay appeal could be sent, once a judge decides to deploy "public policy."

It's not so much that an appointed "Special Juror" is likely to be any less megalomaniacal or venal than a judge, it's just that such a creature is very sackable by the people's representatives.

Remember children, a good judge is a hogtied judge. Discretion to waggle the eyebrows is OK. More than that, no.

[ReaderY]

The rules involved in are, generally speaking, common-law in nature. Congress can of course override them. In some cases it has done so. But when it doesn’t, courts are making common-law decisions, and balancing public and private interests is part of what common-law decision-making involves.

Erie held that courts must apply state law including state common law when deciding diversity cases. It doesn’t mean all other common-law rules, such as rules for how federal courts function, have been abolished. This is a common-law rule for how federal courts function. It’s federal commin law.

[Sarcastr0]

All I'm saying is Samuel Bray writing about unruly horses is a bit on the nose.

[Davy C]

At least his first name wasn't Buck.

[CJColucci]

Some minimal context would be useful here. The judge had to decide something -- we don't know what -- somehow. If some statute or precedent governed the case, there would be no occasion to look at public policy. If not, the case still had to be decided.

[Stephen Lathrop]

In the 5th Circuit they have been riding the Genuine Mexican Plug.*

*Check Mark Twain.