Legal Commentary

Here?s a proposition that I don?t think I?ve seen articulated, but which rings true to me: Being on the D (both civil and criminal defense) side of litigation tends to involve urging courts to engage in formalist analysis, while being on the P (plaintiff & prosecution) side tends to involve advocating some version of non-formalism.  Caricature, observations, and questions follow the jump.

I spent the bulk of the litigation portions of my time in practice on the D side, with a roughly equal split between civil and criminal.  Based on that experience, a rough caricaturization of the dynamic goes like this:  P asserts that some bad stuff happened, and offers up a handful of legal theories that P hopes support the imposition of consequences.  P?s inclination is to emphasize the badness of the stuff that happened (?twas very bad indeed), and not to be too precise about the specific connections between the nature of the bad stuff and the requirements of the legal rules (it was bad enough that it?s got to fit somewhere, and did we mention that it was bad?).  D, on the other hand, is very well aware that a given legal theory requires elements A, B, C, and D to be established (every single one of them), and wishes to emphasize that by God P has done nothing to establish C (nothing! And sure maybe some things that could be perceived as not good happened but hard cases make bad law, dontcha know).  If you?re a P there seems to be an incentive not to commit yourself to specifics until you have to, while as a D you want to nail things down as precisely as possible so that you know what you?re fighting against and can get to work attacking it.

Maybe that?s so obvious as to be unremarkable.  (Even if it is, there are of course exceptions and qualifications aplenty to be made.)  But it seems to reveal a split that?s not ordinarily accounted for in the standard depictions of the politics of the various sides.  For example, the American Trial Lawyers Association is open only to civil plaintiffs' and criminal defense lawyers.  And my guess would be that most (probably all) empirical researchers would code judicial decisions in favor of the prosecution and civil defendants as conservative, and decisions in favor of criminal defendants and civil plaintiffs as liberal.  On the other side of the coin, I think it helps tell the story about how it is that Justice Scalia has been behind so many decisions that favor criminal defendants.