Friday, June 29, 2012

John Roberts, EZ Grader? Judicial Modesty and the Principle of Charity:


With caveats. I ain’t no fancy lawyer. [Double negative not intended literally, but for emphasis.  But, you already know that, using good ole’ PofC, right?]

 Reading Roberts’ justification for his reinterpretation of the IM as a mere tax law, and having that percolate overnight, I woke up this morning, with thoughts along these lines:

This judicial modesty thing, a sort of application of the philosopher’s interpretive principle of charity, brings to mind an analogy from the world of schoolin’:

Suppose I’m at a law school, or in a grad philosophy program, and it’s coming up on the end of my last term; thesis defense time.  I have orals, and a written exam due. So, I turn the parchment product in, and undergo the oral defense. In both, I make use of two basic arguments for my thesis, one of which I spend a great deal of time on, the other I develop to a lesser extent, but basically write off as the weaker of the two.  The bulk of my argument rests on the former foundation.

Well, my committee members, who have been involved in the whole process, give the thesis another look-see, grill me on the two arguments, and spend more time on the former argument, closely examining and pin-pricking the premises/assumptions that undergird it. They spend considerably lesser time on the latter argument, but note in passing that it is possible to develop it into a more robust argument than I had actually accomplished. This is something they had pointed out to me before. I did not take up the suggestions, as is apparent in the final product.

Next: the committee kicks me out, starts deliberating on whether or not I pass.  Hours pass. During the discussion, they come to the conclusion that the primary line of argumentation was bunkum, that I really did not do a good job of anticipating objections to it. On the whole, they determine it is weak. On the whole, they determine that reliance on it alone would constitute a fail, or rather the requirement that I undertake a do-over.  But, one of the committee members, wanting to find a way to help me, takes up the suggested –in-passing-second-argument, and develops that secondary argument, one I had not fully developed, (one I had in fact thought was not worth developing), in a much more robust form that had ever occurred to me. Everyone else on the committee agrees that the argument concocted by the member is pretty damn clever, and one that could have been weighty if presented.

So, it comes down to the final vote, a simple majority decides whether I pass or fail. The result: 5 vote for a pass based upon the counterfactual argument concocted by the sympathetic member; 4 vote for a do-over, based upon the actual arguments as presented both on parchment and in person.

Is this fair to other candidates that are conducting defenses at my school? Will the law school / grad school not have to do the same thing for everyone else in order to maintain fairness?

I can tell you one thing for sure: It sure would have been nice to have my undergrad and grad term-papers graded on this standard! I’d have nailed a 100 every time. Talk about grade inflation.

Admiral Akbar chimes in on the Individual Mandate..er..

I mean.....