A Barrister's Blog

I recently read McHugh J’s paper entitled: “The Judicial Method“.

McHugh J cites Gewirtz, “On ‘I Know It When I See It'”, (1996) 105 Yale Law Journal 1023 at 1025 as authority for his statement that: “The necessity for an identifiable judicial method arises from the nature of judicial power. When parties submit their disputes to a court for determination, they assume that the dispute will be decided in accordance with principles or rules that exist independently of the personal beliefs of the judge or judges who sit in that court“

“I know it when I see it” is the famous quote from US Supreme Court Justice Stewart in Jacobellis v. Ohio (1964) 378 U.S. 184, 197. That case involved a question of whether a film (called “The Lovers”) was obscene or not for the purpose of the criminal law.  Of course, what Stewart J said was: “I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

While we have a chuckle about that statement,  what do we think about it from the perspective of judging?

Gewirtz notes that: “The decision seems to be based on a non-rational, intuitive gut reaction, instead of reasoned analysis; it seems to be utterly subjective and personal. In addition, regardless of how Stewart actually reached his decision in the case, his written opinion raises a further problem: Instead of explaining himself with reasons, he seems just to assert his conclusion with self-referential confidence.” He then sets off in his paper to basically say the criticism is unwarranted.

All a bit high brow? Maybe, but I found it interesting.

Creative commons acknowledgment for the photograph.