Perception: The Braman lawsuit regarding the efforts to build the Marlins a stadium on the Orange Bowl site will determine if the local government’s [Global] megaplan are reasonable and whether the Marlins are paying their fair share.
Reality: The case in Judge Jeri Beth Cohen’s courtroom may be settled along technical legal grounds which don’t address either the plan’s reasonableness or whether the Marlins are contributing their fair share.
Normally, I’d label that perception as unfair, with the caveat that judges, of all people, should be able to deal with that, given [oncoming Godfather reference] the lives they have chosen. But that was just my first reaction. Then I remembered to consult the great Judge Posner.
I’d like to extrapolate his views from another issue onto this one. Recently I watched HBO’s Recount – about the 2000 Presidential election – and started reading Posner’s views on it [he thinks the Supreme Court's decision achieved the correct result, but was poorly arrived at]. Aside from his book on the topic, he had a lengthy exchange with Alan Dershowitz in Slate magazine, during which he made the following point:
Students of the law differ on the extent to which pragmatic considerations are proper in adjudication. I believe that they are proper, though with qualifications. If pragmatic adjudication means ad hoc decision-making that disregards everything besides the immediately foreseeable consequences of the case at hand, I am against it. But I’m for it if it merely means bringing into the decision-making process, to the extent allowed by the conventional materials of adjudication such as text and precedent, a consideration of consequences both long term (such as the importance of predictability in law) and immediate. Law’s consequences are not “extralegal” matters that judges should ignore in accordance with the maxim ruat caelum ut fiat iustitia (let the sky fall so long as justice is done). Law should be in the service of life. Where do you think law comes from if not from practical concerns with attaining such social goals as prosperity, security, freedom, and, in Bush v. Gore, an orderly presidential succession?
The bottom line here is that if the Judge Cohen thinks the Global plan is a bad deal for local governments, that thinking may legitimately find its way into the decision which comes from her courtroom. Score one for perceptions.