[quote="Beathan":3dvtm2np]This observation is very troubling. On one hand, every case is about a consideration of facts as presented to the tribunal and therefore is limited. Every decision must be made on less than complete and less than perfect facts. However, it is also true that trial courts can, should be, and are routinely reversed by courts of appeals when they decide cases prematurely or on ambiguous facts. The problem with hypothetical questions is that they ask potential judges to make judgment-like decisions based on facts which are so impoverished that they would not provide a sufficient basis for the judgment. This is practicing bad habits, and should be avoided.[/quote:3dvtm2np]
I do not agree that the factual scenarios presented provide insufficient basis for a judgment. It is to be noted that, where there is no dispute of fact, cases will be decided by reference to the propositions of fact in written notices submitted to the court by the parties (what are called pleadings or statements of case in some first-life common-law jurisdictions). Depending on the parties, these may be very brief. Appeal courts may have to decide a case on a point of law on the factual basis set out in a judgment of a court below, which itself may be a condensed version of what the judge in the court below considered the relevant points. There is no reason to suppose that it will never occur that such facts will be as brief or more brief than those set out in the example questions in the questionairre.
[quote:3dvtm2np]Second, it is simply a mistake of legal reasoning to contend that the problems with hypothetical questions do not appear because, as a rule of answering hypotheticals, we take the facts as presented as if they are proven and, therefore, do not need to evaluate the facts in light of unprovided cirumstance information or credibility issues. As I have argued elsewhere, an answer to a hypothetical question will necessarily prejudge cases the judge may actually hear as a judge. [/quote:3dvtm2np]
As I have already explained, your assertion that there is any "necessary" prejudice is unfounded as a matter of fact. I also find it odd that you repeatedly raise the issue of credibility: a very substantial number of cases in real-life involve no disputes of credibility, and our courts are likely to be no different. Issues relating to credibility are therefore conceptually incapable of being relevant to a series of questions all of which make plain that the candidate is not being asked to decide any credibility issues. It would be wholly wrong in law for a judge to question anybody's credibility where that credibility is not formally in issue.
[quote:3dvtm2np]I personally believe that there is no principle of law that is so clear that the outcome of a case is foreordained without reference to the factual circumstances of the case. Even questions which seem to have perfectly clear and unavoidable answers in the abstract can, when tied to difficult facts or circumstances, not only appear less clear, but can require different answers.[/quote:3dvtm2np]
I disagree: there is a reason that headnotes have very succinct recitation of the facts of the reported cases. Of the seminal cases in legal history, what more facts do we need than that, for example, a life insurance company accidentally made a payment to a widow when it had no legal duty to do so because the policy had lapsed, or that a young lady took fright, and subsequently suffered nervous shock, in consequence of finding a decomposing snail concealed at the bottom of a bottle of ginger beer much of which she had happily consumed, and that had been bought for her by somebody else and given to her as a gift, or that two parties to a contract for the sale of cotton currently aboard H. M. S. Peerless each genuinely believed that the contract was about a [i:3dvtm2np]different[/i:3dvtm2np] H. M. S. Peerless, each of which was carrying cotton, one of which was scheduled to arrive in the same port a good deal earlier than the other, such a difference making a material difference to the value of the contract?
[quote:3dvtm2np]The problem with asking hypothetical questions in a judicial qualificiation process is that the judge has provided abstract answers to abstract questions that might appear relevantly indistinguishable from real issues raised in later cases, but raised unders circumstances that require a different answer than the one provided in the judicial qualificatin process. If the judge has provided a relevantly similar answer in the abstract, the judge will be forced to either be inconsistent or to be wrong in rendering the later decision in a real case. If the judge makes the right decision under the circumstances, the judge will be open to criticism that their reasoning is inconsistent (and therefore inferior) because it diverges from the abstract answer given during judicial qualification. The judge may even be accused of dishonesty -- of having lied during judicial qualification. These accusations will undermine the judicial system -- attacking the very essence of the force of judicial action, the integrity and intelligence of the judge. If, to avoid this criticism, the judge merely reiterates the decision that he made in the abstract during judicial qualification, he is committing twocardinal sins of judging -- 1. he has prejudged the case without hearing the facts and has made a decision without reference to the facts and 2. he has made a wrong decision, which he knows to be a wrong decision, out of institutional expedience and moral cowardice.[/quote:3dvtm2np]
As I have already explained, this does not make sense: either the case at hand genuinely is comparable, or there are good reasons for it being not comparable, and those reasons can be given in judgment. As I have also explained now a number of times, there is no difference between deciding a hypothetical point (or real case) on the basis of very limited information, and then coming on to decide a case where there is more information available differely because some of the additional information makes a difference to the outcome than deciding one case with detailed information pointing to one outcome, and another case with detailed information pointing to another outcome, when an approximate outline of the facts of both is the same. You have yet to provide clear reasoning for the distinction that you contend between deciding one real case (whether on limited information or otherwise) and another, and answering a hypothetical question of the specific sort that I have written in the application questionaire, and in that context, then deciding a real case.
Also, many of the points that you make above also seem predicated on the assumption that the answers to the questions will be published, yet that will not necessarily be so.
[quote:3dvtm2np]This is very cold comfort. First, a hypothetical question which suggests an answer that is perfectly clear and indisputable to Ashcroft might indicate two different things. First, it might indicate that the answer is actually clear and indisputable (although I doubt there is any such answer in law). Second, it might indicate that the question and answer are suggested by a deep, abiding, unconscious, unscrutinized, and immoveable prejudice in Ashcroft about the issue. In other words, people can be utterly convinced of a proposition on two bases: (1) the eminently reasonableness of the propisiton or (2) the unreasonable and unreasoning prejudice of the person believing the proposition. Further, the actions of people are indistinguishable regardless of the basis of their action -- reason or faith.[/quote:3dvtm2np]
That is no more or less true of hypothetical questions than of [i:3dvtm2np]any[/i:3dvtm2np] questions. Any process where one person or set of people are required to test the suitability of one or more people for any given task necessarily and unavoidably requires placing a considerable degree of trust in the judgment of the person or people conducting the assessment. The particular questionaire that I have written raises no issues in this respect that are not necessarily raised by any applications process.
[quote:3dvtm2np]Second, even if Ashcroft is completely honest and completely self-aware and completely correct in his denial of bias, an institution that relies on such honesty, self-knowledge and integrity is on very dangerous and uneasy footing. We cannot know the internal workings of the people we charge with institutional power. Therefore, we must be careful to set up institutional processes that do not rely on the moral rightnessof the administrators. An institution that relies on the goodness of its administrators is inherently dangerous because it can be abused, without ready remedy, by people with bad motives. For this reason, I think such institutions are not only dangerous, they are illegitimate.
I have all the faith in the world that Ashcroft is a good man and has the interests of CDS at heart. However, this is not my analysis. I ask, what would happen if Hitler, and not Ashcroft, were evaluating my answers to these questions. If the answer is, "I would be disqualified for improper reasons without an ability to correct that evaluation" -- then the evaluation system is fundamentally flawed.[/quote:3dvtm2np]
If Hitler (or Milosevic, or Dr. Evil, or any other archetypal villain) were to be a judge, there would be rather more important things to worry about than hypothetical questions in the qualification requirements.
Any judicial system necessarily and unavoidably rests on the trustworthiness of its judges: that is why the qualification requirements are so strict in the first place. If we start with the premise that judges cannot be trusted to at least some significant extent, the inevitable conclusion is that the rule of law is not attainable at all. That is not a conclusion that the experience of the operation of the judiciary in most civilised countries compels.