What the law is: Karl Llewellyn, Goldilocks, Sonia Sotomayor, and Baby Bear

Mar 18 2012 Published by under Uncategorized

This one gets filed under "Everything I need to know I learned from Sesame Street".

Go find a five year old. Go on, do it. I'll wait.

When you do, ask the five year old what a judge does. Did the answer have something to do with locking up criminals? I'm guessing it did.

Criminal law is where judges usually appear in the public consciousness. It's where judges usually appear in public culture. It's the image we're all familiar with - the black-robed figure behind the bench, looking down at the participants in the drama. Most of their dialogue consists of lines containing the words "sustained" or "overruled". (There's probably some sort of Writers Guild requirement involved somewhere.)

And it's good for kids to know that there is a justice system there to help keep us safe. It's good for them to know that there are people whose job it is to figure out if the person accused committed the crime and punish them if they did. But it's not enough.

And that's where the protagonists of this little post come into the picture.

I just started reading Karl Llewellyn's The Bramble Bush. This book is Llewellyn's attempt to explain the law and law school to people who are getting ready to start law school. Llewellyn gets to the core of what the law is early on:

What, then, is this law business about? It is about the fact that our society is honeycombed with disputes. Disputes actual and potential; disputes to be settled and disputes to be prevented; both appealing to law, both making up the business of law. But obviously those which most violently call for attention are the actual disputes, and to these our first attention must be directed. Actual disputes call for somebody to do something about them. First, so that there may be peace, for the disputants; for other persons whose ears and toes disputants are disturbing. And secondly, so that the dispute may really be put to rest, which means, so that a solution may be achieved which, at least in the main, is bearable to the parties and not disgusting to the lookers-on. This doing of something about disputes, this doing of it reasonably, is the business of law.

Karl Llewellyn
The Bramble Bush, p. 5.

Enter, 80-some-odd-years later, Sesame Street and United States Supreme Court Associate Justice Sonia Sotomayor. And Goldilocks. And a very pissed off Baby Bear, with a somewhat broken chair.

As some have pointed out, the case might have been dealt with in a manner that glossed over a few minor issues with Goldilocks conduct. Trespass doesn't get mentioned, the subject of property rights is bypassed, and she definitely seems to have dodged the bullet on the felony breaking and entering thing (and possibly a real bullet or two if the Castle Doctrine had been brought into play). But those are all side issues.

The key thing - the take home for the children - is simple: judges help settle disputes. Sure, some of those disputes will be between the prosecutor and an accused criminal, but a lot of them will not involve criminal conduct. They're disputes between people who might not be friends, and might not want to be neighbors, but are still part of the same society, the same community. The courts, and judges, are there because it's good for all of us if all of us are able to settle our disputes in a civil way.

One response so far

  • keithb says:

    My juror experience was a life insurance beneficiary dispute. *Both* parties were money grubbing life-suckers, but we had to decide who the money should go to based on the facts, not the people involved.