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A TEXTUALIST METAPHOR-PLAY BALL!

A story in the March 31, 2008 edition of the Dowagiac Daily News reports on a recent speech given by Justice Clifford Taylor at the Cass County Republicans' Lincoln Day dinner at the Edwardsburg American Legion Post 365. Justice Taylor, a textualist, described his perception of the role of judges with a baseball analogy. Judges should be umpires calling balls and strikes--not pitchers putting spin on the ball, so says Michigan's Supreme Court Chief Justice.

The article, written
by John Eby, states:

"As a strict constructionist, Taylor believes the role of a judge is not to make policy, but to interpret the words of the constitution or the statute at issue and interpret them by fairly reading the language."

Head Umpire Taylor's baseball metaphor is an apt one, but not for reasons he might appreciate.

A baseball umpire calls balls and strikes. Ball in the strike zone, strike. Ball out of the strike zone, ball. Plain and simple, according to Justice Taylor, black and white. Words in statutes are easy to read. Read them, decide the case. Plain and simple. Black and white. No "spin". No problem.

But let's take a look a baseball umpire and the strike zone. According to Major League Baseball, the strike zone is:

"The Strike Zone is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the bottom of the knees. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball."

So, the size of the strike zone is different for every player, and is different for any player depending on his stance. Batter changes his stance, his strike zone changes.

The strike zone is invisible. Its dimensions can't be seen, even by the umpire.

The judgment of the umpire as to what is or is not a strike can't be reversed by anyone, no matter how loud they complain.

And, finally, any pitch, even one with "spin", that is in the strike zone should be a strike.

JUSTICE FOR ALL

Two men say they're Jesus,
One of them must be wrong.
"Industrial Disease"-Dire Straits

The current majority of the Michigan Supreme Court has, over the past 10 years or so, explained the merry havoc it has wrought within the state's jurisprudence, otherwise called its "opinions" as the application of a judicial "philosophy" it has called "textualism." (The alert reader may recognize that the liberal use of quotation marks (""), is meant to be "ironic".)

Textualism has been described by Justice Maura Corrigan as the application of the objective meaning of the actual words of a statute or the constitution. It is "ironic" that the talent of being able to read and understand the Queen's English has only been vouchsafed to the membership of the Michigan Supreme Court since 1999, when for the first time in 50 years Republican nominate or appointed Justices became the majority on the Court.

This philosophy appears simple, until one realizes that there are a lot of words out there, and lots of them have several definitions even within the same dictionary, and there are a whole lot of dictionaries out there to choose from. Take the word "lot" for instance. The Merriam Webster On-Line Dictionary (only one of literally 23.8 Million response to the search term "Online Dictionary" at Google.com), has seven definitions of the word "lot", with an additional seven sub-parts to those seven definitions. Now that's a lot of lot.

With so many "objective" meanings and "authoritative" sources available, it would seem that the textualists would have a great deal of freedom in choosing the definition of a word that might suit other facets of their judicial philosophy. Objectivity is subjective.

The Impact of the Michigan Supreme Court on the State of Michigan Law (1999-2007)

On Tuesday, March 18,2008, the Michigan Chapter of the American Constitution Society will present the program:
The Impact of the Michigan Supreme Court on the State of Michigan Law (1999-2007) .

The presentation will take place in the Spencer M. Partrich Auditorium of the Wayne State University Law School. The program runs from 5-8pm, is free and open to the public. The Law School is located at 471 W. Palmer, Detroit. Refreshments will be served at 4:30pm. Free parking is available next to the auditorium on a first-come first-serve basis.

Among the featured speakers is Justice Marilyn Kelly of the Michigan Supreme Court, Dean Frank Wu, Wayne State University Law School, Gary Maveal, Associate Dean for Academic Affairs, and Professor of Law at the University of Detroit Mercy Law School.

RSVP here.

MICHIGAN NO-FAULT PPI BENEFITS AND WHY MICHIGAN RAILROADS SLEEP NIGHTS

Michigan Lawyers Weekly published my article, DISRUPTED LIVES HOLD LINE ON INFLATION, in its March 10, 2008 issue. In writing that article about the $20,000 minimum bodily injury liability limit established by the Michigan No-Fault Act in 1973 (and unchanged since), I neglected to examine another mandatory coverage under the Act, and one again that has remained unchanged since '73.

Property Protection coverage (PPI) is part of your mandatory no-fault policy coverage, but is not to be confused with collision coverage, which covers the repair cost of your car (collision coverage is not mandatory). PPI coverage pays for damage your car does to other people's property, as opposed to damage your car does to other people's bodies. Remember, the required coverage limit for injury and death, is by law, $20,000. Property damage coverage has a required coverage limit as well, though you won't see it on your policy's declaration sheet. It is, and has been since 1973: (drum roll) $1,000,000!!