Saturday, September 24, 2005


Invisible Aristocracy of Mind

When I'm not here expressing my true self, I summarize appellate judicial opinions for a professional journal. They come in on Wednesday and are due back on Monday. I usually print them out and take them to MacD's or the Starbucks in our local Barnes and Ignoble, where I read them and mark them up. My gratitude to the internet for allowing me such a career is part of why I started a blog.

These are insurance cases. The appellate judges who write them are concerned with legal issues like jurisdiction and statutory authority and contract interpretation, but even so, each opinion usually starts out by reciting the facts of the case. The car insurance cases are horrific. Normal lives crushed without a moment's notice. Then there are heart attacks after you applied for insurance but before your policy was issued. Bungled arson attempts, successful bank fraud, leftover cases from the California earthquake and oncoming cases from the World Trade Center. All the world's chaos played out from the standpoint of the question: Who'll be left holding the bag? No point asking the corollary: Who will raise their hand and offer to be a glutton for responsibility? In these cases, nobody. That's why they're in court.

One theme besides horror is attorney malpractice. Tiem and again the appeals judge will run through the arguments, identify the legal path that should have been followed, and then note with rueful regret that because Party X's lawyer neglected to follow that path in front of the trial court, Party X's lawyer is barred from raising it on appeal.

Of course, we see plenty of bungling by the trial court judges as well. I'll say that one third get it right, one third try but get it wrong, and one third don't even bother to state their reasons, forcing the appeals court to search a reason that would have been sufficient to support the taciturn lower court judge's opinion, and fill it in for him like a parent retying their child's shoes the right way.

I know about the hot button issue of judicial appointments, the Roe v. Wade idiotarianism whereby we are all goaded into arguing about the substance of a case whose real error was jurisdictional. And I am happy to take a moment to contend that even principled pro-choice proponents should oppose Roe because every educated citizen of our republic knows that was a decision for a legislature, not a court. But my separate point is that appeals court judges really are smarter and better and way more diligent than trial court judges. Yes, I know that could change with the wrong people in office appointing the wrong judges but I'm interested in making a different point.

My point is that somehow, up until now at least, ability has been silently rewarded. And I think in any healthy society, which in my view ours still is, there is an unseen pyramid of ability, an always present if not always acknowledged invisible aristocracy of mind. By this I do not mean a King-Of-The-Hill type of mound, formed when a group of men with guns takes the physical high ground. But something formed freely among free people of good will (not just good intention by the way, but good will), through spontaneous generation.

The blogosphere is one such free and open ground on which such a pyramid will naturally form, is naturally forming. And America is another.


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