Why Being a Judge Is Hard


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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5 Responses

  1. Avatar Ken says:

    This is what I posted there:

    I think you underestimate the flexibility of the concept of intent.

    We routinely instruct juries that they may (but are not compelled to) assume that people intend the natural and probable consequences of their actions. The natural and probable consequences of the failure to maintain adequate health care in a prison system is the death of prisoners with serious medical conditions.

    I recognize that this is an evasion of the core question you are asking, by the way. But an interpretation of “intentionally inflicted” that was broad enough to encompass Haitian deliberate indifference would not be the most aggressive interpretation of intent that I’ve seen in caselaw. It wouldn’t even be the most violent interpretation I’ve seen this week.Report

  2. Ken: You’re probably right, but given the facts, I’m not sure you could even blame it on deliberate indifference, given Haiti’s extreme poverty. Either way, the broad interpretation you advance (actually, since IIRC you do criminal work, that your adversaries advance) is certainly broader than the way most people define “intent.”Report

  3. Avatar Ken says:


    Sure. But the relevant question is not how “most people” would define intent. The question is how relevant law defines it. A definition of intent that encompasses deliberate indifference, or proceeds based on the notion that the law presumes you to intend the natural consequences of your actions, is not out of the legal mainstream at all.

    I don’t bring this up only to quarrel with the hypothetical. I’m also making a point about controversial or “activist” decisions. It is my view that the amount of “stretching” or “activism” one sees in such cases is not, in fact, particularly novel or unusual — it’s simply more noticeable because the case is controversial or well-publicized. Judges engage in equivalent amounts of “stretching” in mundane cases every day — it’s just that no one but the parties to that particular case will notice.Report

  4. Ken: On those points, I completely agree with you.Report

  5. Avatar Cascadian says:

    Nice post. It earned fans here in the peanut gallery. Due process for the hypothetical?Report