Agatstein, David J.

Leach, W. Barton

Moore, Michael S.

English

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Journal of the National Association of Administrative LawJudiciaryVolume 3 | Issue 1 Article 83-15-1983The Logic of Judicial Decisions - Two Items ofGreater or Lesser InterestMichael S. MooreW. Barton LeachDavid J. AgatsteinFollow this and additional works at: http://digitalcommons.pepperdine.edu/naaljPart of the Administrative Law Commons, and the Jurisprudence CommonsThis Note is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Journalof the National Association of Administrative Law Judiciary by an authorized administrator of Pepperdine Digital Commons. For more information,please contact Kevin.Miller3@pepperdine.edu.Recommended CitationMichael S. Moore, W. Barton Leach, and David J. Agatstein, The Logic of Judicial Decisions - Two Items of Greater or Lesser Interest, 3 J.Nat’l Ass’n Admin. L. Judges. (1983)available at http://digitalcommons.pepperdine.edu/naalj/vol3/iss1/8THE LOGIC OF JUDICIAL DECISIONSTWO ITEMS OF GREATER OR LESSER INTERESTItem One. Interstate Commerce Commission v. Kroblin*In Interstate Commerce Commission v. Kroblin, a non-certified carrier(Allen Kro-b/in) transported frozen, eviscerated chickens interstate. A statuterequired carriers to obtain certificates from the Interstate Commerce Commissionunless the carriers were transporting agricultural cr.Modities, as opposed tomanufactured products. The court decided that eviscerated chickens were agricul-tura! commodities, not manufactured products, and that Kroblin was thereforeexempt from the certification requirements. A formalist reconstruction of thecourt's reasoning would be as follows. The major premise (based on a simplifiedversion of the statute which ignores those requirements not at issue) may bestated:I. Objects that are not manufactured products maybe carried without an ICC certificate.The minor premise is obtained from the facts of the case. The court de-cided that eviscerated chickens were agricultural commodities, not manufacturedproducts. Thus:2. These things (eviscerated chickens) are notmanufactured products.From these two premises, the conclusion of the court does indeed follow- eviscerated chickens may be carried by Kroblin without obtaining an ICC cert'f-Icate...The first presupposition required by formalism is that there are suchthings as analytic truths, statements that are true solely by virtue of the mean-ings of the words which appear within them. According to logical oositivism,most true statements are true because they are verified by factual observations.A few statements, however, are true no matter what the facts are because thetruth of such statements is a function solely of meaning and not of meaning andfact. A standard example Is the statement: "A bachelor is an unmarried man."This is said to be true solely by virtue of the meanings of "bachelor," "unmarried,"and "man." No factual observations are necessary to show such a statement to betrue.The existence of analytic truths is presupposed by formalism. To restate,as an example, the syllogism derived from the Kroblin case, a judge's reasoningunder a formalistic structure would proceed as follows:* 113 F. Supp. 599 (N.D. Iowa 1953) aff'd, 212 F.2d 555 (8th Cir. 1954). Thediscussion is excerpted from The Semantics of Judging, by Michael S. Moore,54 So. Cal. L. Rev. 151 (January, 1981), pp. 156-157, 170-173, and is reprintedhere with permission. Most footnotes omitted.I. Objects that are not manufactured products maybe carried without an ICC certificate.2. These things are not manufactured products.3. Therefore, these things may be carried withoutan ICC certificate.It is evident that such a deductive process, while impeccable as a matterof logic, seems to ignore the basic problem for decision in the case. Are eviscer-ated chickens to be classified as manufactured products or not? The second premiseof the syllogism assumes an answer to this difficult question. Thus the syllogismis of little use in understanding what it is a judge does, and should do, In decid-ing the case.By characterizing the facts in the above example In a less question-beggingway, the for'ialistic deductive process may become more illuminating. Thus, thesecond premise might read:2. These things are eviscerated chickens.Now, however, it is clear that from the two premises available to us - the ruleand the facts - nothing whatsoever can be deduced. That Is,1. Objects that are not manufactured products maybe carried without an ICC certificate,and2. These things are eviscerated chickens.Nothing follows at all. What is needed is some connection between the predicate,"are eviscerated chickens," and the predicate, "are not manufactured products."A third premise of the following form would allow the deduction to go through:3. All eviscerated chickens are not manufactured prod-ucts.P.'iw by standard logic the conclusion of the court can be deduced.The problemof course, is how a formalist may justify the insertion of thethird premise. It is not a statement of the facts of the case, but rather a gen-eral statement about all things that happen to be eviscerated chickens. It isnot a legal rule, for there is no legal authority that has established it as true.Nor may one look to logic, for there is no license in logic to create whateverpremise one happens to need. One alternative for a formalist is to assert thatthe third premise is an analytic truth - that is, that it Is always true solelyby virtue of the meaning of the phrases "manufactured products" and "evisceratedchickens.* A formalist must therefore hold the belief in the existence of analytictruths close to his heart. Such a belief Is necessary so he may generate the par-ticular kinds of analytic trsiths necessary for legal formalism to work.* It might seem that there are other possibilities regarding this third premise.It could, to begin with, be a factual truth of either of two sorts: (1) itmight be an accidental generalization that is true; or (2) it might be a truescientific law. If it were the first, it would be like the statement, "Allprofessional basketball players now playing in the NBA are over five feet tall."If it were the second, it would be like the statement, "Sugar is soluble inwater."The logic of either of these statements is such that, if true, they licensethe kind of Inference a formalist needs. In addition, such statements shouldbe a part of a formalist judge's tool kit. Although they are not facts aboutthe particular case which he has found, no one can expect a judge to decide acase beginning In a position of Cartesian doubt.Is the third premise, clarifying eviscerated chickens as being manufacturedproducts, of this sort?...Two other kinds of truths require brief mention here: a priori truths andsynthetic necessary truths. An a priori truth is one which "can be known to betrue independently of all experience." Kripke, Identity and Necessity, inNaming, Necessity, and Natural Kinds 84 (S. Schwartz ed 1977) (emphasis in orig-inal). One does not, in other words, need to make inferences from observationin order to know that an a priori truth is true. So defined, a priority is anepistemological category, not a semantic or metaphysical one. While an analytictruth may be known to be true a priori (see Swinburne, Analyticity, Necessity,and A Priority, 84 Mind 225 (1975), there may be some a priori truths that arenot analytic, e.g., on0e s knowledge of one's own mental state....The concept of necessity is taken by rripke to be a metaphysical notion, notan epistemological or semantic one. See id. Thus, the truths of science forKripke are necessarily true, though not analytically true nor known to be truea priori. Synthetic necessary truths are thus no more than one kind of thefactual truths earlier discussed, which the third premise does not seem to re-semble.Item Two. Regina v. Jbway*(IN THE SUPREME COURT)REGINA v. OJIBWAYBlue, J. August, 1965Blue, J..- This Is an appeal by the Crown by way of a stated case from a decisionof the magistrate acquitting the accused of a charge under the Small Birds Act,R.S.O., 1960, Sec. 24,s.2. The facts are not In dispute. Fred Ojlbway, an Indian,was riding his pony through Queen's Park on January 2, 1965. Being Impoverished,and having been forced to pledge his saddle, he substituted a downy pillow Inlieu of said saddle. On this particular day the accused's misfortune was furtherheightened by the circumstance of his pony breaking Its right foreleg. In accordwith Indian custom, the accused then shot the pony to relieve It of its awkward-ness.The accused was then charged wl th having breached the Small Birds Act, partof which states:2. Anyone maiming, injuring or killing small birdsis guilty of an offense and subject to a fine notin excess of two hundred dollars.The learned magistrate acquitted the accused, holding, in fact, that he hadkilled his horse and not a small bird. With respect, I cannot agree.In light of the definition section my course is quite clear. Section Idefines "bird" as "a two legged animal covered with feathers." There can be nodoubt that this case is covered by this section.Counsel for the accused made several ingenious arguments to which, In fair-ness, I must address myself. He submitted that the evidence of the expert clear-ly concluded that the animal In question was a pony and not a bird, but this isnot the issue. We are not Interested in whether the animal In question is a birdor not in fact, but whether it is one In law. Statutory Interpretation has forcedmany a horse to eat birdseed for the rest of its life.Counsel also contended that the neighing noise emitted by the animal couldnot possibly be produced by a bird. With respect, the sounds emitted by an animalare irrelevant to its nature, for a bird is no less a bird because It is silent.Counsel for the accused also argued that since there was evidence to showaccused had ridden the animal, this pointed to the fact that it could not be abird, but was actually a pony. Obviously, this avoids the issue. The issue isnot whether the animal was ridden or not, but whether it was shot or not, for toride a pony or a bird Is of no offense at all. I believe counsel now sees hismistake.The report of this case was submitted to the Hzrvard Law Record by ProfessorW. Barton Leach, and is reprinted with permission. The Editor is grateful tomember Jordan Rossen for bringing it to the attention of the Journal.Counsel contends that the iron shoes found on the animal decisively dis-qualify It from being a bird. I must inform counsel, however, that how ananimal dresses is of no concern to this court.Counsel relied on the decision In Re Chicadee, where he contends that insimilar circumstances the accused was acquitted. However, this is a horse of adifferent colour. A close reading of that case indicates that the animal inquestion there was not a small bird, but, in fact, a midget of a much largerspecies. Therefore, that case is inapplicable to our facts.Counsel finally submits that the word "small" in the title Small BirdsAct refers not to "Birds" but to "Act", making it The Small Act relating to Birds.With respect, counsel did not do his homework very well, for the Large Birds Act,R.S.O. 1960, c. 725, Is just as small. If pressed, I need only refer to the SmallLoans Act R.S.O. 1960, c. 727 which is twice as large as the Large Birds Act.It remains then to state my reason for judgment which, simply, is as fol-lows: Different things may take on the same meaning for different purposes. Forthe purpose of the Small Birds Act, all two legged. feather-covered animals arebirds, This, of course, does not imply that only two-legged animals qualify, forthe legislative intent Is to make two legs merely the minimum requirement. Thestatute therefore contemplated multi-legged animals with feathers as well. Coun-sel submits that having regard to the purpose of the statute only small animals"naturally covered" with feathers could have been contemplated. However, had thisbeen the Intention of the legislature, I am certain that the phrase "naturallycovered" would have been expressly inserted just as 'Long' was inserted in theLongshoreman's Act.Therefore, a horse with feathers on its back must be deemed for the pur-poses of this Act to be a bird, and a fortiori, a pony with feathers on its backIs a small bird.Counsel posed the following rhetorical question: If the pillow had beenremoved prior to the shooting, would the animal still be a bird? To this let meanswer rhetorically: Is a bird any less of a bird without its feathers?NAALJ NEWSLETTERIn response to the rapid growth of activity within the Association, Presi-dent-Elect Morgan E. "Pat" Thompson has undertaken to publish a periodic Newsletter,which will replace the popular "NAALJ News" column of this Journal. The Newsletter,which will be published from Pat's home base in Oklahoma City, will feature reportsof activity of the National Association, the National Foundation, and the State Chap-ters; will contain biographical sketches of Association officers; will report on thenewsworthy accomplishments of our members; will announce coming events; and willserve as a forum for the timely debate of issues affecting Administrative Law Judges.Under the imaginative and witty guidance of our President-Elect, the Newsletterpromises to greatly expand communication between our members. It will be distributedwithout charge to active members of NAALJ.

The Logic of Judicial Decisions - Two Items of Greater or Lesser Interest

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The Logic of Judicial Decisions - Two Items of Greater or Lesser Interest

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