[quote="Beathan":2ae1dg5y]The problem here is that, from where I sit, it is black letter law that judicial applicants cannot ethically answer hypothetical questions. Ashcroft's response, both originally and in his new response, is to defend hypothetical questions as necessary for the application examination structure he is implementing. Again, this is not an answer. From the perspective of American judicial ethics, those questions cannot be answered, even if asking and answering them is a good idea from some abstract perspective.[/quote:2ae1dg5y]
This does not make any sense: the black-letter rules of any given fist-life jurisdiction are, in and of themselves, of no application or relevance to us. We may draw from the rules ideas or inspiration, or look behind them to the principles and see whether we can learn anything from them, but it is absurd slavishly to follow another legal system's rules (of any sort whatsoever), merely because they are rules of another legal system. Indeed, it is an express part of our qualification requirements that a prospective judge needs to be both willing and able to forge new ideas, and start with a clean slate, forging our own principles, rules and precedents, and never, ever accept a proposition of law [i:2ae1dg5y]merely[/i:2ae1dg5y] because it is a proposition of law that is true in some first-life jurisdiction.
It is one thing to say "this rule holds in jurisdiction X, and therefore it will hold in the CDS", and quite another to say "this rule holds in jursidiction X for reason Y; Y is a valid reason, and is sufficient to have the rule in question, and, for that reason, therefore, that rule shall apply to the CDS". The second involves examining the reason that the rule holds elsewhere, and involves that reason, and not the mere fact of it holding elsewhere, as the reason for applying it to the CDS.
So, returning to the point, it simply does not make sense to claim that my arguments about why there is nothing in principle wrong with hypotheticals is not a good argument [i:2ae1dg5y]because[/i:2ae1dg5y] some norm of a jurisdiction foreign to the CDS prohibits it. An argument on first principles, and only an argument on first principles, will suffice to show that it is improper to ask those who seek judicial qualification to answer hypothetical problem questions about the law and practice in the CDS.
[quote:2ae1dg5y]Further, there is additional point, which also might indicate a split in judicial theory as we cross the pond. In the U.S., advisory opinions of hypothetical cases are disfavored. Such cases are prohibited outright in Federal Court. We must have what is called "a case in controversy" -- which means that we must have a real dispute between real people based on real facts which the court can hear and think about in rendering a decision. On this theory, the answer to a hypothetical question or a hypothetical case is, in fact, no answer at all.[/quote:2ae1dg5y]
Courts, [i:2ae1dg5y]qua[/i:2ae1dg5y] courts, may not decide purely academic matters here, either, but a ruling by a court on a point is a world apart from an answer given by an applicant to judicial office, who does not yet hold the authority of a judge, and is not acting in anything other than a personal capacity, in a questionaire for judicial qualification. The purpose of the rule is to prevent the court's resources from being abused, since the function of courts is to render resolutions to practical problems.
[quote:2ae1dg5y] Based on this perspective, hypothetical questions are not merely ethically suspect as prejudging cases, they are actually useless insofar as they do anything other than prejudging cases. That is, if the hypothetical does not constrain the judge's future decisionmaking, the answer to the question is meaningless. If the hypothetical does constrain future action, it is unethical prejudging of cases.[/quote:2ae1dg5y]
That does not make any sense in the context of what we are discussing, that is hypothetical problem questions on an application form for qualificaiton for judicial office by people who are not yet judges, and therefore who are not exercising or purporting to exercise any of the powers of a court. It is most certainly not useless, as I have already explained above, to see how candidates for office would fare when called upon to make a decision, and I have already explained why the argument from prejudice does not make any sense.
[quote:2ae1dg5y]This problem does not arise from one case to the next exactly because each case presents its own facts and parties and circumstances. A judge is acting ethically as long as the judge takes up and considers each case on its own merits based on its own evidence and the circumstances of the dispute and the parties. This can make apparently inconsistent decisions consistent in fact. Hypotheticals, through their detailed generality, are very different animals. They ask judges to make decisions based on incomplete facts entirely divorced from any circumstances. From the perspective of American judicial theory, such questions cannot be answered just because they are hypothetical and untethered from facts, persons, and circumstances.[/quote:2ae1dg5y]
The point about the detailed circumstances of a case does not, as I have already pointed out, make sense: firstly, none of the questions invite applicants to make decisions of [i:2ae1dg5y]fact[/i:2ae1dg5y], so any points about assessing evidence, the credibility of witnesses and suchlike is quite irrelevant. Secondly, the questions specifically require the candidates to assume that there are no other relevant facts. That is not an inconceivable state of affairs. Thirdly, many judgments in real life have to be made on very limited information, such as on appeal, or where there are only written representations from the parties. It is not true, therefore, that the hypothetical questions are necessarily distinct from what a real-life judge would have to do in practice on at least some occasions. The quesion about penalties is a good example of this: many people who are banished by marshals of the peace will never respond to our notices and take no part in our proceedings. Judges will nonetheless have to decide, on the basis just of the written information provided by the marshals of the peace (and uncontested by the defendant) what penalty to impose. That information is likely to be no more (and probably less) than is contained in the hypothetical questions about penalties.
[quote:2ae1dg5y]This is based on a common American idea that law, like engineering, cannot be done in the abstract. It is not essentially about ideas; it is essentially about people and human interactions. The standard academic formulation is that law is about conceptions, not concepts. Law is nonsense without consideration of particular people, rights, duties and circumstances.[/quote:2ae1dg5y]
Not all circumstances are relevant to all decisions, and not all relevant information is available to the court when making decisions.
[quote:2ae1dg5y]Notably, a nomination, confirmation process does not have this problem. A potential judge's reasoning ability, as well as aspects of character and temperament, can be thoroughly tested through the confirmation process. Further, the confirmation process can test these abilities without resort to hypotheticals. I actually think that an examination process need not resort to hypotheticals, either.[/quote:2ae1dg5y]
If that is the case, this debate is not a debate about which of the two processes is better at all. But either process must ensure that a candidate has the right [i:2ae1dg5y]practical[/i:2ae1dg5y] abilities.
[quote:2ae1dg5y]Good legal reasoning is not so unlike good reasoning in general that good legal reasoning ability cannot be fathomed without resort to legal hypotheticals. In fact, I think that the general philosophical questions in the exam already provide complete answers, and an astute observer would be able to fully and accurately judge the qualification of an applicant without even reading the answers to the hypothetical questions.[/quote:2ae1dg5y]
I know that the US Bar course is very different, but the Bar course in England is a heavily [i:2ae1dg5y]practical[/i:2ae1dg5y] course, reqiring students to undertake assessments based on mock courtroom scenarios, complete with actors to play witnesses and practising lawyers paid to come and act as opponents in negotiations. University examinations (in the UK, the academic stage is separate from the Bar qualification itself) commonly involve hypothetical problem questions to test students' abilities to apply their understanding of the law to practical situations, and to abstract from practical situations the theoretical issues of the law that they have been studying, and interviews for pupillage (the apprenticeship for barristers) commonly require candidates to answer detailed questions about hypothetical cases, or to undertake mock advocacy exercises. All of that is important to test the abilities of such people to apply their undrestanding of the theory to practical situations. There is no reason why the same approach should not be applied to judges.