Saturday, July 26, 2008


The Jellybean Counter

Suppose a town decides to have a contest for people to guess the numbers of jellybeans in various jars. To produce an official count, they appoint an official Jellybean Counter. His job is to determine what the whole number of jellybeans in each jar is.

The first jar contains 427 perfect jellybeans and nothing else. The Jellybean Counter's job is easy. His job is to report the number 427. His job is not to report 426, or 428, or for that matter 5,591 or 57. His job is to report 427.

The second jar contains 503 perfect jellybeans, along with half a cherry jellybean and half a licorice jellybean. What's is the Counter supposed to do here? His job is not to produce a description of the jar's contents, but a whole number. If the rules don't say how half-jellybeans should count, what number should he report? He could do his job by reporting 503, 504, or 505. He would not be doing his job if he reported any larger or smaller number.

In the interest of fairness, the Jellybean Counter should try to make clear what rules he intends to follow in cases that are not addressed by official rules. He must also, however, not allow his own efforts at rulemaking to take priority over any official rules, nor over common sense. For any jar of beans, it will be obvious that any number of beans outside a certain range is just plain wrong. The Jellybean Counter might have formulated a wonderful rationale for a count value outside that range, but no matter how beautiful his logic, such a value would be wrong.

Today's courts are like an overly-creative Jellybean Counter. If they don't like the result that's mandated by the law and the case before them, they formulate some rationale to justify a different answer. Their usurpations are then used to justify further usurpations.

I wish some judges would be more willing to put their foot down on such dangerous nonsense. In ambiguous situations, it is often right and proper to rely upon precedent to select among alternative judgments. In such cases, however, the precedent isn't necessary to justify a judgment, but merely to explain why it was chosen in preference to other equally-justifiable judgments. If a judgment cannot be justified without reference to precedent, I would suggest that it is not legitimate. I can think of no exceptions.

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