April 20, 2004

Rule of Law

by Nick Morgan

All this talk of "Technicalities" has put me in the mood for legal theory. The first problem with defending or rejecting a judicial result based on a technicality is that “technicality” doesn’t have a very specific meaning. It’s sometimes used rhetorically to argue that one’s opponent is relying on the letter but not the spirit of the law, or that a theory advocates some result that appears to be outside the law’s purpose, even if it’s within the law’s mandate. So if a criminal defendant argues that his confession was “compelled” by an overwhelming sense of guilt and civic duty, suppressing that confession under the 5th Amendment would certainly be an instance of “getting off on a technicality” that one should disapprove (I know, this example is extreme, but you get the idea).

But some cry “technicality” when the law does precisely what it’s supposed to do at the momentary expense of justice. If our defendant—though guilty as sin—had been forced to take the stand and speak (or face contempt penalties), we ought to say that any incriminating testimony should be thrown out, regardless of guilt, to preserve the function of the 5th Amendment, for better or worse, because fidelity to our Constitution requires that we set free the guilty sometimes in order to minimize unjust law enforcement.

So the rule of law certainly doesn’t depend on the first kind of technicality—which I doubt Will Baude meant to argue—and I’d even suggest that it doesn’t absolutely depend on the second type, either, at least with respect to non-constitutional technicalities. As I understand it, courts often sidestep some of the finer points of procedure when strict adherence seems pointless. And technicalities, in judge-made law, are revised (and even jettisoned) all the time by higher courts. The very fact that trial judges are given a great deal of discretion over evidentiary matters is an indication that hyper-technical regimes of finely tuned rules for every occasion are not only very difficult to design properly, but are sometimes not worth the administrative burdens they bring.

April 20, 2004 06:22 PM | TrackBack

It seems that the pre lawyer/law student word "technicality" gets translated into "procedural" or "jurisdictional" after a few years of training. Its not that there is no reason behind the rules, or that many of them are very necessary to orderly and just resolution of disputes. Technicality is a good a word as any I guess, especially when the rules of procedure or jurisdiction lead to a polar opposite result from what would happen on the merits.

Posted by: Matto Ichiban at April 20, 2004 07:20 PM

A good example of this dynamic would be the free agency case of the [former] San Fransisco 49er wide receiver Terrell Owens. Everybody knew he wanted to exercise his option to become a free agent at the end of the season, San Fransisco was resigned to that fact, and he was busy negotiating to join the Philadelphia Eagles. Unfortunately, his agent forgot to file the proper papers in time (I believe the deadline had changed from last year), so "technically," or procedurally, he could not rightly claim free agency status.

The case was eventually settled, with the 49ers & the Ravens (to whom the 49ers tried to trade him after the error was realized) accepting some small compensation (draft picks I believe), and he was free to sign with the Eagles.

That is precisely one of those cases where a "technicality," or uber-strict allegiance to procedure could well have resulted in what some parties might have seen as an injustice (everybody long knew his intent to become a free agent, etc). Anyhow, thought that example fit particularly well.

Oh, and here's a link to a news story describing it all (tho I imagine many are already familiar with it) Link

Posted by: Visible Hand at April 20, 2004 08:19 PM

Ah, whether this kind of interpretation is a 'technicality' at all depends on exactly what you conceptualize as a "Rule of Law" of course. If you're Scalia, then each of the things you mention above are a slight deviance from a rule of law: after all, you've engaged in a bit of retrospective or retroactive law-making. You're indulging in the rule of men--specifically, whatever judge is making the decision. While Scalia would say that's inevitable, it's to be avoided, and once you've made a rule, you should stick by it next time.

On the other hand, if you conceptualize it as Margaret Radin does, then even ex post lawmaking isn't a problem so long as the community knows that something is a 'rule,' whether it's a law or not. Similarly, it's all about the substantive justice, baby...

One of the problems is that 'rule of law' is a hazier term than 'technicality.' And I say that as someone who's got an exam on it in under four weeks...

Posted by: A. Rickey at April 21, 2004 01:49 AM

Technicality is the soul of law.

Posted by: Scipio at April 22, 2004 03:40 PM
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