June 8, 2008

"This is why I've often said that legal ethics is to actual ethics as Madison, Wisconsin is to James Madison..."

"... the former is vaguely inspired by the idea of the latter."

Sasha Volokh disses Madison in the comments to a Volokh Conspiracy post by Judge Paul Cassell.

The post is about whether it's ethical for a judge to perform a marriage ceremony for the defendant he's just sentenced. Lawprof Stephen Gillers had said "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility. He should have shot this down as soon as they asked. He's not there to perform weddings; he's there to send a man to jail" and "I suspect that in 232 years of American history, it's never happened that a [federal] judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."

But Cassell himself had performed such a marriage. He says: "I thought it was important to honor the request for the defendant for the service because I thought it would improve his prospects for rehabilitation if he knew he had lovely wife willing to wait for him." But he concedes that it might be a ploy for leniency or inadvisable for some other reason. (Gillers was commenting on a child pornography case where the 42-year-old defendant was marrying a 21-year-old.) In classic judicial fashion, Cassell thinks the matter can be trusted to the discretion of the trial judge.

So that's the post. It's interesting.

But what's with dissing Madison? If we could reanimate James Madison and show him this place, would he really have such a problem with us?


Several other commenters at VC bring up "The African Queen." I couldn't find a YouTube clip for the glorious scene they were referring to, but I did run across the trailer, which might make you want to rewatch the whole movie to get to the part the commenters were talking about. (Not sure what they meant to prove there, as the ethics are demonstrated by a Nazi.)

AND: Thanks to commenter Bearbee, here's that marriage scene (a big spoiler if you haven't seen the movie):

AND: Just watched the clip. "By the authority vested in me by Kaiser William II, I pronounce you man and wife. Proceed with the execution." So those weren't Nazis. The movie takes place in 1914, at the outset of WWI. Sorry for the vague memory. So Rosie's dress wasn't all that old-fashioned. Note too that it's the ship captain who performs the marriage (and gives the sentence), not a judge.

MORE: In the comments, Sasha denies that he dissed Madison, I argue with him, and he responds. Also, Sasha's analogy inspires a contest.

AND: Eugene enters the fray.


bearbee said...

Last Request

downtownlad said...

Um. Whatever. Why is Ann not blogging about this?


Simon said...

"The post is about whether it's ethical for a judge to perform a marriage ceremony for the defendant he's just sentenced."

No - the post is about whether it's ethical for a judge to perform a marriage ceremony for a defendant who he will shortly sentence ("[b]efore the judge sentences him on child pornography charges, he wants Lee to perform his wedding ceremony"). That posture distinguishes the marriage that Cassell performed. By Cassell's account, he was asked to perform the marriage after the sentence was handed down, so that couldn't have been a ploy (as the instant motion almost certainly is) to provoke sympathy and reduce the sentence. Further, the sentence of the person asking Cassell to marry him wwas known, and short; as Cassell explains, he "thought it was important to honor the request for the defendant for the service because [Judge Cassell] thought it would improve his prospects for rehabilitation if he knew he had lovely wife willing to wait for him," emphasis added, whereas "it would have seemed like more of a 'ploy' if the defendant was facing an extremely long prison terms, as child pornographers typically are."

rhhardin said...

actual ethics

Whenever you attend a business ethics seminar, always raise your hand and ask if it's ever okay to tell a lie.

You might as well take advantage of the expert as long as they're there.

Radish said...

I didn't realize James Madison was a totalitarian Marxist hippie. Learn something new every day.

Trooper York said...

Lawyers and judges should get over themselves. They are no important than butchers or plumbers or florists or the guy in the metal cart who gives you your coffee in the morning. As Titus would say, when they go to pinch off a loaf they think a diamond comes out. Get over yourself.

J said...

I don't see the "diss" in saying that one thing is named after another thing, but the two aren't the same.

If you're saying being compared to "legal ethics" is being dissed, well, you're the law professor. In Madison.

"Lawyers and judges should get over themselves"

"Just because you're necessary doesn't mean you're important"

-Ashleigh Brilliant

Sasha said...

I'm with J. I'm sure Madison, Wisconsin is just great, but I doubt that it has much connection with James Madison beyond being named out of a vague desire to honor him.

Sasha said...

Incidentally, the original quote is from Jack Balkin, commenting on Cass Sunstein's speech-restrictionist theory of the First Amendment, which Sunstein dubs "Madisonian":

"Sunstein's 'Madisonian' theory of the First Amendment is about as Madisonian as Madison, Wisconsin: It is a tribute to a great man and his achievements, but bears only a limited connection to his views." J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1955 (1995).

Ann Althouse said...

Hi, Sasha. Since you are disrespecting legal ethics compared to "actual ethics" and you've set up the analogy, I saw it as conveying equivalent disrespect for Madison. James Madison and actual ethics are the real thing, and legal ethics and Madison, Wisconsin are spurious distortions. I don't see the same disrespect in Balkin's way of saying there's not much connection between the namesake and the thing named after him.

Sasha said...

Hmmm, what I had in mind was more like legal ethics isn't bad in itself, only to the extent it purports to be somehow like actual ethics. I do in fact diss legal ethics to some extent, but here I'm more focusing on its not being the real thing, as in "I have a strong sense of ethics but that doesn't mean I know anything about legal ethics."

I suppose it gets more confusing because actual ethics is highly positive (more so than the actual James Madison), so saying that anything isn't the actual ethics sounds like it should be a put-down (whereas lots of good people can disagree with Madison). But, for all I know, legal ethics may have its place ("spurious distortion" is your interpretation, not my phrase -- note that my comment was naked), I'd just prefer it be called "Code of Regulation for the Legal Profession" or something more neutral.

Madison, Wisconsin, I'd add, comes out looking the best in all these comparisons, because it doesn't make any claim to be like James Madison.

Supremacy Claus said...

As Barney is to Tyrannosaurus Rex, a ridiculous, annoying, toothless joke.