Judges Appellate judges-job is to interpret and apply past law Law is either – Case law-common law – Statutory law-legislative enactments

Judges reason Objectively and neutrally – Is this possible? – How does subjectivity present itself

Statutory Interpretation Judges must apply law to facts Juries try the facts-judges interpret law Judges interpret the meaning of statutes Statute is law enacted by legislature Enacted law=positive law Interpretation of statutes is informed by differing philosophies of “statutory construction” and law

Speluncean Explorer Case Five judges-five opinions-five ways of thinking about how to apply this law to this case What happened

N.C.S.A. 12-A WHOEVER SHALL WILLFULLY TAKE THE LIFE OF ANOTHER SHALL BE PUNISHED BY DEATH

Chief Justice Truepenny Uphold Conviction Letter of law clear Allows for no exception-must convict Executive clemency His philosophy- STRICT STATUTORY CONSTRUCTION

Justice Foster Overturn conviction on two grounds LOOSE STATUTORY CONSTRUCTION – Go behind words look for legislative intent – NATURAL LAW – Outside the physical boundaries of the jurisdiction, positive law does not apply

Justice Tatting Withdraws- – Irresolvable contradiction between his legal philosophy that the letter of the law should apply (STRICT CONSTRUCTIONIST) and his moral view that this would lead to unjust result

Justice Keen Uphold Conviction-Strict Statutory Constructionist Inappropriate to call for Executive Clemency (pardon) Judge’s job is to apply to letter of the law to the facts-to read the statute literally

Justice Handy Overturn Conviction Philosophy of Legal Realism-thinks of the political and social context of law Considers the reality of who the Governor is Relevance of Public Opinion

How Legal Philosophy Shapes Judicial Decision-Making Judge’s opinions are grappling with – Dissonance between law and morality – The legal idea of necessity – Mens Rea – Rational choice – Social contract

What about Judicial Discretion? How to account for Judges’ subjectivity Jerome Frank argues that judging is a psychological process-that judges reason from an intuition, a hunch. Subjectivity most vividly expressed in “sentencing.”

Who would you choose? You’re representing a doctor, charged with murder under a similar statute,because she, at the request of her patient, suffering from early stages of Alzheimer's, helped him commit suicide by injecting him with cyanide What if the doctor was charged with murder under this statute because he performed an abortion on a patient who was 16 weeks pregnant?