Suppose the "technicality" is something that the law pretty clearly entails, even though it's doubtful that legislators had the particular worrying circumstances in mind. In that case, the judge is doing something we normally think judges are supposed to do: deciding cases based on the law. It's open to the judge to point out that this is an unfortunate consequence of the law, and may be open to him/her to adjust penalties accordingly, but if the law actually has a certain consequence, then that's the law. If the "technicality" is an unfortunate one, legislators can fix it, or so the argument would go. Compare: suppose that it's not a matter of a technicality at all, but a matter of a law that the judge thinks is bad. Then it's still the judge's sworn obligation to follow the law. Is this fair? In various senses of the word, the answer may be no. Should the judge do otherwise? That doesn't follow. It's not clear that the cure for bad laws is to have judges substitute their judgment of what's...

Of course, if you vote, you do get at least an indirect say in who's on the court. And after all, your say in a good many matters is only indirect. In any case, if the question is what the Constitution means, there's something unappetizing about having the check be one that's too directly tied to the political realm. Constitutions are supposed to set some things beyond the reach of the ordinary democratic process, not least so as to evade what some call the "tyranny of the majority." But in any case, it's not as though there are no counterweights. Some have held that Congress has the authority to declare that some matters are simply outside the purview of the Court, though I gather that this is controversial. But if the Court makes a constitution ruling that enough people object to, the Constitution can be amended, and has been many times. More generally, what strikes me (as someone born elsewhere) is that far from being "primitive," the American system of checks and balances - including...

At least in the USA, the premise of the criminal justice system is that the burden is on the state to establish guilt "beyond a reasonable doubt." And there are various reasons why we might want to stick to that standard. It's not a good thing when a guilty person goes free, but it's also not a good thing when the state has low standards for establishing guilt. And so the usual idea is that everyone is entitled to a vigorous defense. Even if the lawyer believes in his/her heart of hearts that the client is guilty, the question for the judge and jury is whether the state's arguments and evidence make the case.

There's the old saying that ignorance of the law is no excuse, because it's an excuse that anyone could offer and we wouldnm't know how to refute them. Legally, things are a bit more complicated. I gather that the Due Process clause of the US Constitution carves out some exceptions. If there's nothing "obviously" illegal about a certain kind of conduct, and the State doesn't provide proper notice to citizens that it's against the law, then the law won't pass constitutional muster. A fanciful example: suppose that buried in the bowels of some omnibus bill was a provision making it illegal to drive a red-and-blue car, but the State made no effort to let people know. Fining someone for this new "offence" would probably not stand up to challenge. So in US law, at least, there's some requirement that citizens have a reasonable chance of knowing what's illegal. But even supposing all the laws were properly promulgated, it's not clear that we have an actual duty to know and understand them all. ...