[FRIAM] tolerance of intolerance

[Prof David West]

There is a lot of room for nuance here and tons of room for empirical research as to what judges actually have done; but:

in most cases, a jury (sometimes the judge) decides which side has "proven the facts" and then decides what the law requires given those facts. Appellate courts are expressly forbidden to consider any 'facts', only procedure and errors in law.

A judge that does 'decide facts', is an error-in-law and grounds for overturning the case. This is illustrated in two of Trump's cases: The appellate court appears (based on questions they asked) to believe that the judge in the financial case made a reversible error by fiat deciding that Trump committed fraud (the judge decided a fact); while in the defamation case the judge did not 'decide' that Trump committed sexual assault, he simply pointed to a conviction in an earlier case as the "finding of fact," and denied the Trump defense from raising the "I didn't do it" defense.

On a purely practical level—judges (sitting without juries) are de facto, if not de jure, deciders of fact when the case is deeply scientific or technical in nature. Simply because they do not have the expertise to determine which side presented the most accurate or correct case—which side offered the 'facts'; simply the most convincing. But the same thing is true of juries, who do have the authority to decide fact. They simply do not have the necessary knowledge to reasonably decide, so other extraneous factors (which attorney was the most charismatic) end up deciding the case.

In the case of juries there is no recourse unless you can redefine "peers" in some manner; e.g., only climate scientists with more than 20 peer reviewed papers may sit on a jury deciding climate change cases.

With judges, the failure to appoint a qualified referee or special master, should be a reversible error-in-law. Of course, the problem of a "qualified" referee remains problematic. [   unless, of course, I am that referee   :)   ]

The reconciliation of frames issue is another matter: it used to be the case that SCOTUS did not review a case until two appellate courts established conflicting positions. SCOTUS then reconciled-the-frames. But still with regard the Law, not Facts.

Making things even more interesting: the proliferation of laws, including felonies and criminal laws, the vast majority of which were established by bureaucrats and not legislatures or courts, has created a situation a clever judge, with a little bit of time, can probably find a "law" to support any position that judge wishes to take.

davew



On Mon, Sep 30, 2024, at 11:13 AM, glen wrote:
> Everyone knows I'm not a scholar. But it certainly appears that judges 
> are (and have been for a while) considered "triers of fact", at least 
> when a jury's not available.  Of course, what they really mean is 
> something more akin to Jon's pursuit of models (or whatever it is I 
> *think* Jon's doing 8^D). What the judge (or jury) ends up doing is 
> choosing the perspective/facet/frame/model for whatever 
> blame/consequences should ensue. Whether that perspective is unitary 
> (like the modernists, monists, universal-logic advocates, etc. would 
> have us believe) or not may be a bit untethered. But "fact" in this 
> language refers to an attempt at parallax and to land on the "largest 
> model" or perhaps the most fit-to-purpose model of the given scoped 
> context.
>
> But Justices (vaguely referring to judges in "higher" courts) might be 
> another matter. It seems to me like it's their job to reconcile "lower" 
> courts' frame selections ... to unify all the frames into the One True 
> Frame, maybe analogous to physical GUTs. To my mind, the Justices would 
> be even less tethered than the judges. Justices are metadata peddlers, 
> always yapping on about (often falsely ... "biasedly"?) *derived* data, 
> almost never about the "raw" data of some given context.
>
> As we realized with software awhile back, there is no difference 
> between data and code ... between the facts and the law. Law is fact 
> and fact is law. To separate the two naively can be problematic.
>
> On 9/28/24 17:09, Prof David West wrote:
>> Judges should decide law, not facts. With one exception, I see no instances of SCOTUS doing otherwise. The exception is the very recent assumption that judges can determine the 'facts' of history and the feeble attempt to ground decisions of law in those 'facts'.
> -- 
> ꙮ Mɥǝu ǝlǝdɥɐuʇs ɟᴉƃɥʇ' ʇɥǝ ƃɹɐss snɟɟǝɹs˙ ꙮ
>
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