Law in Contemporary Society
I was surprised that Eben characterized Judge Day as someone with absolute power and control. I can see how her awareness that she's going to be a cripple one day causes her to split because she is not in control of herself/her body, but I don't think that she has any delusions about her lack of power outside of herself either.

Judge Day seems to be fixated on the idea of power and is particularly aware of the extent of her own power. "The finest lawyer [she's] ever known" told her that "Real power doesn't exist in the courts. He was so right. You have discretion in this job, but you'd be surprised how little. It's taken me an embarrassingly long time to realize that there's a big difference between having a bit of discretion and having real power. It is a very important distinction. A very, very, very important distinction." (90)

Judge Day spends her life outside of the courtroom watching, listening, discerning. She observes the things that people do that will get them into her courtroom and she seems to have strong opinions about what people deserve, but her power is extremely limited in two ways. First, she exerts no influence over people's actions that cause them to end up in her courtroom, because her job is to judge people's actions after-the-fact. Second, as a judge who is "forced" (76) to discern and enforce the law, she only has a "bit of discretion" in applying rules of retributive justice.

Judge Day watches the creepy lawyer follow the girl out of the subway "at ten forty-five in the morning!" (82) but it's just her "morning show" (83). She tries to figure out what kids who commit crimes are thinking, but she doesn't see them until they end up in her courtroom, "insolent and scared" "toward themselves, toward life in itself." (90) Outside the courtroom, the woman convicted of conspiracy for attempted murder was in an abusive arranged marriage and the husband never denied her allegations of violent rape etc. Judge Day doesn't think federal penitentiary is what the woman deserves, but she only has a "bit of discretion"to come up with "good reasons" to reduce her sentence." (94) Either way, the woman is going to prison - in the courtroom, Judge Day must follow the rules instead of asking why law is the way it is.

I found Judge Day to be pretty defensive in dissociating herself from politics (the “intrapsychic phenomenon” [as Eben called it] of the “will to gain and keep power” (75)). I find this ironic because I think it is her inability to "exert power over people's minds," as she claims politicians (but not judges) do, that causes her distress.

-- MichelleLuo - 04 Apr 2012

I see this as the "irony of chaos" and how to prevent or attempt to prevent "cognitive dissonance" or to deny splitting. Cerriere had the same issue. He yearned to criticize Martha Tharaud (maybe this is alluding to Henry David Thoreau) to make himself feel better about "advising clients on how to fire the Roberts of the world." I believe Eben was not necessarily making the assertion that Judge Day has absolute power, but rather than her esteemed, powerful position as federal judge helped her hide the reality of splitting.

Her conversation with the narrator about how to reduce the woman's sentence, as you mentioned, highlighted this for me. She claims only to enforce the law, yet she's looking for a method to make it seem as if she's only enforcing the law. Finally, although she attempts to make her conduct seem totally opposed or different from politics, she seems to reach a realization that maybe there is some truth behind political criticism of federal court decisions. She at least wants to help the narrator go over the next draft of the report dealing with it. Well, maybe this is another way for her to hide this splitting by using her power.

Her spine can't hide this splitting though. The stress of attempting to justify a stance in which she does not really have is taking its toll. It seems as if she would be better off, whether a judge or not, if she followed her principles/values and did so openly. People would likely be persuaded by this example, and she would obtain the power/peace she really needs.

-- WilliamDavidWilliams - 05 Apr 2012

William David, thank you for clarifying that. That makes sense to me. Judge Day also says that she doesn't have to do politics (play the power game I guess) because she can keep her job as long as she wants. This sounds like a form of power but as you characterized, this is just one of several ways that she hides behind her "powerful position as a federal judge." At the same time, I think that Judge Day is distinctly aware of when she, as a person, separates from her judgeship. As she's sitting on the subway, she thinks, "No one sees me and thinks "federal judge"" (76) and she knows that the girl on the subway "couldn't care less" (76).

I agree with you that Judge Day may be better off psychologically if she stopped pretending (to herself) to be a Formalist judge and openly followed her sense of intuitive justice. I'm suddenly reminded of a discussion we had in Legal Methods about how Formalism (during the Age of Faith) partially arose out of judges' anxiety over "bringing law to slavery". Judges had four choices when it came to upholding the Fugitive Slave Act: 1) resign, 2) refuse to follow the law, 3) find a way out through technicalities, or 4) follow the law mindlessly "with death in your heart." I think that Judge Day thinks that she is in the fourth category - don't ask why, just follow the law . But you're right that in reality, she tries to find ways to bend the sentencing rules to comport with what she thinks is just. She doesn't actually think that the law we have is what we deserve - the "you get what you deserve" justice on the street doesn't fit with the justice in the courtroom, and that creates cognitive dissonance for a self-boxed Formalist judge.

-- MichelleLuo - 05 Apr 2012

Thank you for starting this post. You actually hit the nail on the head with the Fugitive Slave Act. That actually is connecting more of what we have learned in the course thus far. Judge Lemuel Shaw, who upheld the Fugitive Slave Act because it was the law, when claiming that he was personally opposed to slavery, is another example of splitting. That's why it was brought up earlier in Lawyerland during the conversation between Jansen, Urquart, and Voorhees in Something Split. Joseph is giving up examples of splitting without always telling us. I think he wants his readers to understand this and engage in self-examination.

Despite what people tell us we have to do or what type of lawyer we have to be, we have to stay true to ourselves and use our law degree to make a difference. Just because it's "the law" or "the system" doesn't mean we can't change it. Avoiding this splitting will move us closer to achieving the justice that the world needs. This conversation is one step in that process.

Also, it is interesting how Black discusses the social stratification of the Maori of New Zealand (p. 34), as you discussed your experience with them in an earlier post. It is all coming together.


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r6 - 22 Jan 2013 - 18:17:05 - IanSullivan
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