Quiz: You Be The Judge

The judiciary is the highest calling in American government. A democracy cannot function without sound judgment, and there can be no judgment without judges. But the life of the contemporary jurist is not always as romantic and exhilarating as one might assume. The resolution of judicial questions requires a lethally sharp analytic mind and an ability to see through a case’s moral aspects in order to reach its legal ones. You may think being a judge requires little more than the ability to put on a robe and angrily pound your desk with a tiny hammer. But there is occasionally somewhat more to it than that, and you must also be practiced in the arts of sensible decision-making and reprimanding your lessers. Do you have what it takes to be a judge? Do you? Our comprehensive test will reveal the caliber of your legal mind and your capacity for abstruse reasoning.

1. A 16-year-old black child convicted of manslaughter has been given life in prison without the possibility of parole and is being housed in an adult facility. You must issue a judgment on his appeal. How do you respond?

A. Oh my God, that’s horrifying. Overturn the sentence, order that the child be transferred to a juvenile facility immediately, order that they be given psychological counseling for any trauma that they might have incurred by being victimized during their time housed among much older inmates. Reprimand the prosecutor and order that restitution be made to the child’s family.

B. The Founding Fathers would have been horrified to see injustice in our criminal justice system, and I find myself disturbed by this situation, which contradicts the core values of our great Constitution. This situation potentially violates the Equal Protection clause, the Due Process clause, and the prohibition on cruel and unusual punishment. We must determine whether the defendant’s race was a factor in sentencing, whether the sentence was imposed according to proper due process, and whether all mitigating factors were taken into account. I hereby reverse and remand the case to the lower courts, who are instructed to ascertain the pertinence of these issues. If, after a searching examination, they conclude that defendant’s race was not a factor, the sentence was imposed through proper due process, and the mitigating factors were considered, the sentence is constitutional, but if not, this is a scandalous violation of the defendant’s basic rights and he must be guaranteed a parole hearing after the first fifty years of incarceration.

C. Our task here is to balance the interests of the defendant with the interests of the state, while preserving the integrity of existing precedent. To resolve this case, we may look to the precedent set by the 1632 English case of Marston v. Rufflepenny, which established the doctrine of carceris dolorificum, holding that “the punishment must be proportionally painful to the crime.” Marston was, of course, modified by the 1843 West Alaska Railroad doctrine, which requires that Latin maxims be given their most arcane possible interpretation, which in this case would lead to the conclusion that imprisonment is a substitute for the pain of ordinary life. Weighing this in a four-factor test against the defendant’s interests (the factors being legality, magnanimity, salinity, and dubiousness), one is compelled to rule against the defendant out of both pragmatic and textual considerations.

D. Nothing in the text of the Constitution or the laws of the United States prohibits the imposition of this sentence. There is no meaningful legal question here. I hereby uphold the sentence and sanction the child’s attorney for wasting the court’s time with a frivolous appeal.

E. The sentence is unconstitutionally light. Children should be subjected to harsher penalties than adults as a rule—they have many more years left during which they might commit a crime. At the time of our country’s founding, serious crimes were dealt with via firing squad. Anything less in this case would be a flagrant violation of the Rule of Law, and would erode the moral fabric of Western Civilization. I hereby vacate the defendant’s sentence and remand to the lower court with an instruction to impose nothing less than the most excruciating imaginable death and to require local schoolchildren to witness the execution as a deterrent measure.

2. A young woman has fled a small Central American country after being kidnapped and tortured by a violent gang. She had repeatedly refused to join the gang, at great risk to her own life, saying that she believed their way of life was morally wrong. Her asylum application was denied by an immigration judge, who said that as a mere victim of “violent crime,” she was not eligible for protection. The immigration judge’s decision was affirmed by the Board of Immigration Appeals, who stated that moral opposition to gangs did not qualify as a “political opinion,” thus she was not eligible for asylum as she was not considered to be fleeing persecution. You must decide whether to uphold or overturn this decision.

A. This decision is overturned, and no, I’m not remanding it back to the asshole judge who denied it in the first place, I’m granting her asylum outright. Then I’m going home and hugging my beautiful children, who get to grow up in an environment of peace and safety. Then I’m setting up a scholarship fund for this young woman, who deserves to have something nice in her life for a change. Oh, does that violate some kind of professional ethics rule? Fuck you. I don’t care. If the counsel for the government keeps making that face at me, I’m going to have him air-dropped into a gang warzone. Then I’ll watch him shit his pants. Then I’ll inform him that soiling yourself doesn’t qualify as a political opinion.

B. I am sympathetic to this young woman’s position, but even more importantly, I am concerned about administrability and predictable standards. By rejecting the applicant’s claim that moral objection to a gang constitutes a “political opinion,” the BIA has effectively promulgated a new administrative rule. As such, under the Administrative Procedures Act, the agency must engage in a notice and comment period before the new rule can come into effect. This procedure will allow for consistent and reviewable standards for similarly-situated individuals.

C. Our job in this case is evaluate whether or not the applicant’s fear was the result of a “protected belief.” While I have no doubt that the violence she faced was real and that she suffered greatly, the law simply does not allow “not wanting to join a gang” to qualify as a political opinion. If her position was akin to “I am a Democrat and this is a gang of Republicans that I do not want to join,” that would present a different issue. Per circuit precedent, as established in Gonzalez v. Gonzalez, only asylum applicants who have personally handed out leaflets clearly spelling out their political views at a fundraising brunch, and subsequently been pistol-whipped by a man wearing the lapel-pin of an opposing candidate, may be deemed to have a “political opinion” under the INA. In this case, we are bound by the law, and cannot consider her moral objection as a valid basis for asylum. Further, we cannot find facts beyond those found by the BIA, and therefore must defer to their reasoned and expert judgement under the Chevron standard. Judgement affirmed.

D. A gang’s attempt to coerce a person into joining their criminal enterprise does not constitute “persecution on account of political opinion.” There is not enough evidence on the record to show that the applicant’s resistance was politically motivated. A fact-finder might easily determine that her resistance stemmed from sheer, indiscriminate stubbornness, which might cause her to refuse to join any organization, or perhaps by her desire to reap economic and social benefits that would be barred to her as a gang member. Since the applicant did not produce evidence so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution on account of political opinion, the judgment is affirmed.

E. This Court has no jurisdiction to hear this appeal. Under longstanding doctrine only juridical “persons” have the ability to petition the Court for appeal. Persons under this definition are only those who reside within the jurisdiction of the Constitution, the U.S., and its territories. The petitioner here has no place of residence and does not fall under the ambit of the Constitution. Thus she is not legally a “person” for purposes of Constitutional application, and may not lawfully challenge her detention. Constitutional rights are not fruits in a garden, to be plucked by any passerby who happens to be desirous of them. They are sacred charges granted to those who have accepted the social contract of our society. Furthermore, the frivolous petitioning of the Court for a client who clearly has no standing or rights before this body is a breach of the rules of ethics under Rule 11. The lawyer bringing this case is hereby sanctioned.

3. A prominent tech company has accidentally disclosed all of its customers’ personal data to the public, including their entire email inboxes, their web search histories, their medical histories, their chat transcripts, their credit card numbers, and their tastes in unconventional pornography. Countless lives have been ruined, mass chaos has resulted. An employee whistleblower at the company reveals to the press that before the breach, the CEO was frequently heard to shout “Fuck the public! We own the public! The customer is the product!” whenever security concerns were raised. The company immediately fired the whistleblowing employee, and citing a small-print provision of the employment contract, demanded the employee pay back the entirety of the salary earned during the 10-year course of their employment. The contract also specifies that if the employee cannot pay, they become permanently indentured to the company. The employee files a lawsuit contesting the contract and alleging wrongful termination, while the customers enter a class action lawsuit over the data breach. You are the judge. Decide.

A. They did what? Okay, first, clearly you can’t have a contract like that, that’s outrageous. No indentured servitude. Jesus, how is it that I even have to say that? Is this some colonial-era nightmare flashback? The company is ordered to restore the employee to her position, compensate her for the time she was “fired,” and apologize profusely. Actually, you know what, just turn the management of the company over the workers. As for the customers, every single one of them needs to be paid fair compensation for their harm. Duh.

B. The company’s actions are shameful, and were they done by the government, I would be shocked by their brazen unconstitutionality. However, private corporations are not covered by constitutional provisions, which restrain only state actors. In this case, the company did happen to be a private contractor that offered services to the government, which raises the question of whether it counts as operating on behalf of the state, thereby incurring state obligations and limitations. The answer is no. The plaintiffs also allege that the contracts they entered into were “unconscionable” and “horrifying,” but their contractual claims are barred by a failure to file in the proper venue and the misapplication of “choice of law” by the lower court. I must ruefully dismiss the case.

C. The relevant provisions of the law of contracts can be found in ancient Sumerian labor law. Of course, this court previously addressed a similar case involving bakers and organ-grinders in Dalaficci v. Pennsylvania. There, we held that “the contracted vessel is nowhere beyond the party’s intent despite elapse.” This was elaborated in the famous Roadmaster General case, in which a postal worker was shot for dropping a package into U.S. territorial waters during wartime. The same precept applied, without the maritime exceptions, in Alameda Trucking, a case that was partly superseded by Pleniver v. Eustead but whose caution against putting “the facts before the law without the law before the facts” remains valid as a legal construct and has been cited as recently as Riddle Magazine v. Vuetec Novelty Diskettes in 1995, though that court used a truncated version of the dictum, altering its connotation to imply that “the facts” and “the law” are functionally inseparable rather than (as is wryly noted in the Federalist Papers) “separate despite their function.” Scholarly literature on the “erosion” doctrine has implied that this conclusion may no longer hold absolutely, but until such time as this court abandons the classic multi-pronged “non-rights-oriented” approach this case may be settled on the basis of querens parentes non posterum. I therefore dismiss the plaintiff’s claims.

D. The right of the employer and the freedom of contract are sacrosanct in American law. The customers entered a contract with the company allowing it to use their data as it pleased. The employee entered into a contract with the company adhering to the indenture provision. The fact that neither the customers nor the employer “knew” what they had agreed to is immaterial. Whether one must abide by an agreement does not depend on whether one understands what it is. Furthermore, neither case should be in the court system due to the “private arbitration” provision of the contracts, which requires that any contractual disputes be settled in a fight to the death between the claimant and a large bullmastiff.

E. A labor contract transfers ownership rights over the employee to the employer. By engaging in voluntary market transaction with the company, the customers and the workers become company property and can be disposed of as the company’s executives see fit. Because the indenture provision fails to compensate the company adequately for its loss, I hereby order that both customers and employees be placed in permanent corporate custody and sent to work down the Bitcoin mines.

4. At a political rally, the President of the United States strangled a protester to death with his bare hands. Prosecutors have sought to bring charges, but the president’s legal counsel have filed a motion to dismiss the charges on the grounds that the president was acting within the scope of his executive authority. You are the presiding judge in the case. How do you respond?

A. What the everloving fuck? The executive authority to murder a person in cold blood? Are you seriously making that argument in my courtroom? Counsel, if you even begin to try that bullshit again in front of me, I am holding your ass in contempt. (Along with the rest of you.) I am having the president taken into custody, since he’s not only a flight risk, but is also apparently under the illusion that he’s allowed to kill people with impunity. Bail will be set at whatever the value of his real estate portfolio turns out to be.

B. This case raises very serious constitutional questions about the separation of powers. I am obviously disturbed by the incident, as one can tell from my proclamation of how disturbed I am. The important question here is whether the president is allowed to take lives under the scope of his inherent constitutional authority, or whether there must be prior congressional approval. It is clear from examination of the legislative history of the War Powers Act that Congress has only attempted to limit the president’s wartime authority, rather than his civilian peacemaking powers. I remand the case to the lower court for a determination of whether choking an activist to death constitutes “peacemaking” as it has been historically construed.

C. Our own laws are silent on the question we face today, thus we must trace the roots of executive authority back to the 1215 Magna Carta Libertatum or Great Charter of Liberties. In those exemplifications most faithful to the original, the document constrained the ability of the King to interfere with the property of barons, but afforded little protection to the ordinary peasantry. We may therefore pose two questions: Under common law, (1) should life be considered “property,” the deprivation of which by the executive is lawfully restrained and (2) are rally attendants properly classified as barons or peasantry? Here, we may turn to the interpretation our own justices have historically given to common law rights against executive power. 1944’s Korematsu v. United States affirmed the president’s power to do as he pleases to anybody at any time, especially if it is racist. It is unclear in this case if the president’s actions were racially motivated, but as long as they were, they fall within a long executive tradition justified by considerable legal precedent. Stare decisis settles the issue and the case must be dismissed.

D. The Constitution contains no provision explicitly prohibiting the president from throttling the life out of a random bystander, and the efforts of my colleagues to imagine such a provision into existence show well how political correctness continues to infiltrate the bench. These charges are an outrage and an insult to the memory of the Framers.

E. The president’s power is absolute and unquestioned. The immunity doctrine makes this quite clear. The only tragedy of this case is the regrettably low number of lives he took. We should admire his dignity and restraint.

ADD UP YOUR ANSWERS

Mostly As: It is clear that you are an individual of very strong convictions. This is admirable! Law is a noble calling that seeks humane minds. But to be a judge you will need to keep these personal idiosyncrasies in check. It seems you lack the temperament necessary for the profession. Perhaps you should consider a career in legal aid or political advocacy, where your recklessness and partisanship will not hinder your opportunities. Be warned, though, that too much agitation is unhealthy for a democracy, the preservation of which depends on the sober-minded stewardship of deliberative citizens.

Mostly Bs: You have an obvious desire for the law to function as a force for good, and you are clearly able to perceive injustice where you find it. However, your clear sympathies for the weak and vulnerable may make your judgments appear biased and unreliable, and your confirmation hearings will be difficult. As long as you are capable of demonstrating that you place the rule of law above your ideology, you may yet have a flourishing career on the bench. But be careful of pushing the envelope too far, and make diligent efforts to convince your fellow judges that your first loyalty is to the United States constitution rather than reason or human decency.

Mostly Cs: Your knowledge of legal history and the great jurisprudential traditions is formidable. Your thinking is both deeply grounded in formal doctrine and informed by a pragmatic understanding of real-world outcomes. You should take pride in how well your decisions display moral seriousness without being encumbered by political ideology. With study and diligence, you might be the next Stephen Breyer.

Mostly Ds: You have a textualist legal mind of the highest caliber. While in your rougher moments, your strict adherence to constitutional principles might alienate some mushier-minded judicial colleagues, they cannot help but respect your consistency and integrity. While an ignorant and politically biased public may mock you, it is universally acknowledged among serious thinkers that even when your decisions directly result in considerable suffering and loss of life, they have been made out of a sincere and admirable constitutional faith.

Mostly Es: Your views are somewhat unorthodox, some would say radical. In a previous era, it might have been necessary for you to modify the language with which you expressed your positions, though certainly not the positions themselves. Fortunately, the standards for being given a role in the upper echelons of American government have lately been evolving, and you are precisely the sort of person one can plausibly imagine soon being appointed to the federal bench. If your time is not yet, it is certainly soon.

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