You yourself say that they have different final steps. That final step is the crucial one, the one which needs added skills and experience.
Well, yes, the final steps are different, but you err in assuming that means that the practicing attorney lacks a skill that the judge has. Actually, the judge's final step is the attorney's second-to-final step.
To set it out more clearly, here's how the steps are different.
A lawyer looks at the issue and how the case law applies to the issue. The lawyer determines all the different ways that the case law could be applied, including the way the other side will argue that the law should be applied, and the way that the judge will probably want the law to be applied. Then the lawyer formulates an argument for why the case law should be applied a certain way.
A judge looks at the issue, and how the case law applies to the issue. The judge then determines how he or she thinks that the law should be applied, taking into account the arguments made by each side.
So, the reason the steps are different is that the attorney takes an additional step in reasoning beyond that of the judge: the attorney must formulate an argument to convince the judge. Advocate and judge follow the same reasoning path, the judge just stops earlier.
I actually asked a coworker about this today. He's as qualified as anyone to opine on this issue: he graduated from law school three years ago, and spent a year working at a firm and then two years clerking in federal courts (one on the District Court for the E.D.Va, and a second year on the 7th Circuit Court of Appeals). He's just returned to private practice (He joined my firm, and I'm now supervising him on a case).
He absolutely agreed with me that lack of prior experience as a judge does not in anyway indicate that one is not qualified to be a Supreme Court Justice. He even went a step further, and noted that while experience as a practicing attorney is essential for a judge, experience as a judge is only moderately helpful for a practicing attorney. The reason for this is that, as I stated above, the judge stops his or her path of legal reasoning a step before the attorney does.
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timeasmymeasure
no subject
Date: 2005-10-06 12:52 am (UTC)Well, yes, the final steps are different, but you err in assuming that means that the practicing attorney lacks a skill that the judge has. Actually, the judge's final step is the attorney's second-to-final step.
To set it out more clearly, here's how the steps are different.
A lawyer looks at the issue and how the case law applies to the issue. The lawyer determines all the different ways that the case law could be applied, including the way the other side will argue that the law should be applied, and the way that the judge will probably want the law to be applied. Then the lawyer formulates an argument for why the case law should be applied a certain way.
A judge looks at the issue, and how the case law applies to the issue. The judge then determines how he or she thinks that the law should be applied, taking into account the arguments made by each side.
So, the reason the steps are different is that the attorney takes an additional step in reasoning beyond that of the judge: the attorney must formulate an argument to convince the judge. Advocate and judge follow the same reasoning path, the judge just stops earlier.
I actually asked a coworker about this today. He's as qualified as anyone to opine on this issue: he graduated from law school three years ago, and spent a year working at a firm and then two years clerking in federal courts (one on the District Court for the E.D.Va, and a second year on the 7th Circuit Court of Appeals). He's just returned to private practice (He joined my firm, and I'm now supervising him on a case).
He absolutely agreed with me that lack of prior experience as a judge does not in anyway indicate that one is not qualified to be a Supreme Court Justice. He even went a step further, and noted that while experience as a practicing attorney is essential for a judge, experience as a judge is only moderately helpful for a practicing attorney. The reason for this is that, as I stated above, the judge stops his or her path of legal reasoning a step before the attorney does.