Posts by Thomas Moukawsher
Why Can’t I Make Sense of Judges’ Decisions?
It’s not your fault. It’s because most decisions are written in a secret formula known to most judges and lawyers but not really understood even by them. The formula has its origin in formalist legal thinking. As you might imagine, formalist legal thinking places the form of a legal ruling over its substance. Judges of…
Read MoreAmerica Should Rethink Litigation and Adopt More Humanist Courts | Bloomberg Law
The contemporary American lawsuit focuses on its own form rather than the human problem that prompted it. Starting with a needlessly complicated complaint, it’s followed by years of maneuvering about its adequacy, generating massive amounts of discovery. For any of a half-dozen reasons, it never gets to trial. The result often baffles the parties and…
Read MoreHumanism Should Replace Formalism In The Courts | Law360
Contemporary American judges have more in common with Medieval monks than just wearing robes. Today’s courts are dominated by formalists. After reviewing decisions from the last several months—about guns, abortion, and industrial pollution—they remind me of work by the 13th and 14th Century scholastics, dominated by the monks who dictated thinking in Europe prior to…
Read MoreJudges: Guard ‘your honor’ | ABA Journal
I’m a judge, and I admit it: I like being called “your honor.” Call me entitled if you want, but I disagree with the Kentucky federal judge who made headlines last fall for saying that modesty forbids him from accepting this distinction. U.S. District Judge Benjamin Beaton claimed in a May 2022 speech, which was…
Read MoreJudges Should Avoid Herd Mentality and a Default to Precedent | Bloomberg Law
Judges know a lot about consensus. Consistency is an important attribute of a legal system. That’s why precedent from a higher court must be followed by a lower court. But sometimes judges go too far, treating like binding precedent anything other judges have said. They do this even when the other judge is their equal,…
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