He found it especially uncomfortable to decide so many issues that one could only "guess at": "It is unpleasant when you do not have time really to familiarize yourself with the work."
Two quite distinct problems underlay these concerns. One is common to most new judges, particularly those who, like Hand, had limited courtroom experience. The United States, unlike most countries, has never had a professional judiciary; practitioners come to the bench without training in judging. Only experience can teach the new American judge how to steer through the complexities of trial procedures and preside calmly over a lawsuit. The difficulty is aggravated for new federal judges, who are often unfamiliar with the specialties of federal judicial business. Although the range of problems before federal courts in 1909 was narrower than it is today, judges then did deal with many issues: problems of torts, contracts, and other fields of common law—with which most new appointees were likely to be acquainted from their law practice—but also more esoteric federal fields such as banking, patent, copyright, and admiralty. Hand had no familiarity with any of these
The second problem was still more difficult. While experience had taught Hand how a courtroom is run and had acquainted him with federal law, the need "to decide so many things" that he could only "guess at," without adequate opportunity for study and reflection, would always trouble him. When presiding over a trial, the judge must often shoot from the hip, issuing immediate rulings from the bench that grand or deny motions, determine admissibility of evidence, and in general keep the proceeding going without long pauses for studying and writing an opinion on a controversial issue. This aspect of the work was especially uncongenial to a person as thorough, and sometimes indecisive, as Learned Hand—the man whom Felix Frankfurther occasionally called "the modern Hamlet."
-Gerald Gunther, Learned Hand: The Man and the Judge
Posts
No comments:
Post a Comment