Must A Judge Use Existing Law to Decide Cases?

The answer is – only occasionally. Granted, judges are bound by legislation unless they can challenge its constitutionality, but if a case doesn’t clearly fall within the scope of an enacted law they are free to rule however they see fit. Lawyers will disagree. They will contend that a judge is still bound by decisions in earlier similar cases, known as case law, since they wouldn’t want to admit that, other than a few courses on legal jargon and procedure, attending law school is largely a waste of time when it comes to legal practice.

To see why, let’s take a closer look at the arcane knowledge that law professors teach. They contend that you will learn how to “think like a lawyer”, which can only mean that either: (1) lawyers can obtain mental powers that the rest of us don’t have and that logic, deduction, induction, analysis, and other problem-solving skills do not suffice for the practice of law so that a lawyer must be able to transcend these, or at least hone them beyond the level required for simpler areas of knowledge, such as science or mathematics; or (2) lawyers are wilier than the rest of us when it comes to finding matter for litigation or convincing a jury to disregard facts.

But although law schools contend that they can change one’s thought processes, in reality they primarily teach case law, which, although an interesting and informative source of examples of applied human wisdom, can be comprehended with little more than fluency with legal nomenclature and the ability to decipher archaic and confusing usages of the English language.

More to the point, case law does not provide binding legal precedents. Its only value is to provide ‘justification’ for a judge’s subjective ruling. The attorney’s job is to find cases supporting his client or to point out why facts in cases supporting his opponent differ from the case at hand. Due to the prodigious number of cases found in law libraries, any attorney can easily find one or more that supports his or her client, even though the positions of plaintiff and defendant are always diametrically opposed! The better the attorneys do their job, the easier it is for a judge to justify whatever decision he happens to favor in a particular case. Once made, his decision is entered into case law to be referred to in future cases. So, in reality, judges freely make new law whenever they feel like it and, contrary to popular legal opinion, they may be influenced by, but are not bound by, precedent. All the decisions found in cases that fill voluminous law libraries exist only as guidelines, not hard and fast rules. Their main value is to facilitate retrofitting current decisions to past ones in a Herculean effort to maintain an appearance of continuity.

Further discussion of shortcomings in the judicial process can be found in my books “The Ultimate Reprieve” (Eloquent Books, ISBN 978-1-60911-592-0) and “A Grain of Salt” (Xlibris, ISBN 1-4134-5104-7). They can be purchased from the publisher, Amazon.com, and other major online outlets.

Daniel Romm

danromm.com

Are We Morally Obligated To Die With Dignity?

To answer this question we must first ask, “What is morality?” Several answers have been given throughout the ages: Nietzsche claimed that morality is what society says it is; Adam Smith contended that it springs from natural human sentiments such as empathy; theologians assert that there is no morality without God and that He must tell us what it is through the words of His prophets. The latter is the most prevalent opinion and the one that is pertinent to the ensuing discussion.

To say that there is no morality without God dodges the question, “Is there morality with God?” Stated differently, even though the teachings of the prophets indicate that they were all highly moral by any definition, does it necessarily follow that God Himself is moral? History would seem to indicate otherwise. If He were truly moral why would He permit so much carnage to be perpetrated under His name? It is common knowledge that religious wars and persecutions have permeated our past and caused untold misery. The philosophical question of how evil can exist in a world governed by a benevolent and omnipotent God is known as the theodicy problem and has been debated extensively starting at least as far back as the book of Job. I have nothing to add and will concede for the sake of argument that God is moral. But the question remains, is He necessary or sufficient to define human morality?

We would be hard pressed to find a modern notion of morality in ancient Rome, whose gods included murderers, rapists, adulterers, avengers, unjust partisans, torturers, power mongers, and the like. Yet in its glory days Rome was the most advanced civilization of the age and certainly had its own credible viewpoint of what constituted moral behavior. Every questionable practice, from cannibalism to incest to polygamy to human sacrifice to suicide bombing to witch hunting to inquisitions has been condoned or rejected by some society that believes in a God or gods. Who is to say whose morality, or whose God, is right? – Clearly not fanatics or the so-called ‘moral majority’.

So even if God is moral it seems that He has intentionally abandoned the arena of human morality (perhaps He wants to see if we are up to the task without His help) and if He apparently takes no overriding interest in directing our efforts then His task force, the theologians, ought to follow His example.

Specifically on the question of euthanasia, many theologians and psychiatrists presume to know the best way for us to die. They claim that in order to uphold the dignity of humanity we must experience all that life offers, including the pain and fear of death. Anything less would be immoral. But they fail to ask a key question, “Of what intrinsic value are pain and fear?” If they did they would find the answer in Darwin’s theory of evolution – pain and fear are merely the sine qua non of survival for all but a very few species (some insects have subclasses that apparently don’t fear death). Any individual who did not experience pain would not shun life-threatening dangers that might invoke it and one who did not fear death would be too suicidal to survive for long. Seen in this light these instincts don’t seem to have much to do with dignity; it would be more dignified to die without them.

Although pain is hard-wired into our nervous system, fear of death isn’t. Now that we have evolved into thinking beings that can be taught which situations are life-threatening without having to actually experience them the next logical evolutionary advance would be for individuals to shed the instinctive fear of death for the good of society at large. One who doesn’t fear death would be more willing to face danger if doing so would benefit mankind as a whole.

More on the subjects of morality, theology, and euthanasia can be found in my books “The Ultimate Reprieve” (Eloquent Books, ISBN 978-1-60911-592-0) and “A Grain of Salt” (Xlibris, ISBN 1-4134-5104-7). They can be purchased from the publisher, Amazon.com, and other major online outlets.
Daniel Romm
danromm.com

Is Gambling a Bad Thing?

Many believe that all gamblers are addicts, are untrustworthy, end up in debt, crave attention and thrills rather than profit and, in a word, all gambling is bad. These assessments are based on a misconception of the meaning of the word ‘gambling’ and underscore that the prevailing behavior of most people is risk-avoidance. But the truth is that a risk-avoidance mentality is injurious to one’s well being; on the contrary, seeking rewards is more likely to lead to fulfillment in life.

To gamble merely means to take a risk and this is only unwise if the odds are against you or if you can’t afford to lose and neither of these are part of the definition of gambling. The only problem with gambling is that favorable propositions are hard to find, so if you are indeed addicted and are compelled to gamble regularly you must perforce make many more bad wagers than good ones. But one who only gambles wisely for profit, such as a casino owner, usually becomes quite wealthy. It is clearly advantageous to gamble within your means whenever the odds are in your favor. Over time the chances of coming out on top increase and the chances of losing dwindle to nothingness.

The root causes for the prevalence of risk-averse behavior are psychological in nature. Our species would not have survived unless pain makes a stronger impression than pleasure. Thus risk-aversion is an emotional response; logic has nothing to do with it. Risk-neutrality (a superior attitude) is an acquired taste. If a risk-averse individual can be persuaded to incur a small risk that has a high chance of success he is apt to be rewarded, his pleasurable experience will make it easier to repeat the action, and he will probably become risk-neutral and no longer refrain from seeking and undertaking progressively more rewarding investments. There are deep parallels with psychotherapy; encouraging a patient to take a small risk is the beginning of successful treatment for many neuroses.

Anti-gambling statutes focus on the wrong problem. They do damage by reinforcing the erroneous perception that taking risks is always unwise and would better serve the public if they were reworded to only prevent people from taking losing gambles (those with unfavorable odds). It is a waste of money to target clubs that offer low stake games with neutral odds that merely redistribute money among players according to their skill level (known as zero-sum games in game theory), such as poker, bridge, backgammon or gin rummy. Yet these are generally prohibited, whereas lotteries, racetracks, and casinos, which only offer losing investments, are often exempted.

Further examples of the superiority of reward seeking over risk-avoidance can be found in my books “The Ultimate Reprieve” (Eloquent Books, ISBN 978-1-60911-592-0) and “A Grain of Salt” (Xlibris, ISBN 1-4134-5104-7). They can be purchased from the publisher, Amazon.com, and other major online outlets. In particular, “A Grain of Salt” contains a paper that I wrote in graduate school that presents a rigorous mathematical proof that, given an unlimited variety of investments from which to choose, a non-risk-neutral investor would necessarily eventually make an inferior investment.

Daniel Romm

danromm.com

Is It Always Best To Have The First Choice Of Equipment In Man-To-Man Competition?

No. As one example, suppose I challenge you to sign a contract to enter into a unique dice-rolling competition against me. The conditions of contest are:

Three true dice (meaning they are perfect cubes with no bias in roll) are shown to you. Unlike ordinary dice, these are peculiar in that, although the numbers on their faces are all between one and six, each die is different and has a non-standard number pattern (for instance, a die may contain no fours and two sixes, or some other such anomaly). We will each pick one die and roll them, with the person whose die shows the highest number winning $5 on that roll. The contest ends after 100 rolls. You get first choice of die (after inspecting them all) after which I must take one of the remaining two. Furthermore, you may exchange the die you selected before the next roll as often as you want and again I must take one of the others. Should you accept?

The answer depends upon the number patterns on the dice. Clearly, if one die’s numbers are all sixes and the other two have no sixes you should happily accept and take the die with the sixes since you will win $500. But suppose the dice have the following patterns: die one has all threes; die two has two sixes and four twos; die three has four fives and two ones. Then if you choose die one, I will choose die three; if you choose die two, I will choose die one; and if you choose die three, I will choose die two. Your best strategy is to choose die three, in which case I will be a mere 5-4 favorite on each roll; if you choose either of the others I will be a 2-1 favorite. I will leave it to you to do the calculations.

This is an example of the mathematical concept of non-transitivity – there is no best die! A more commonplace example would be when after six games in a three team sports league the first team has beaten the second twice, the second team has beaten the third twice, and the third team has beaten the first one twice.

More on mathematical oddities, including the Monty Hall problem and the fallibility of intuition in probability and statistics problems can be found in “The Ultimate Reprieve” (Eloquent Books, ISBN 978-1-60911-592-0) and “A Grain of Salt” (Xlibris, ISBN 1-4134-5104-7). They can be purchased from the publisher, Amazon.com, and other major online outlets.
Daniel Romm
danromm.com

A Theoretical Explanation of Dark Matter

Einstein’s special theory postulates that there must be a cosmic speed limit. Influenced by Maxwell and the subsequent Michelson-Morley experiment, Einstein concluded that it was the speed of light. http://216.246.98.8:2086

But, during the inflationary period following the big bang the universe expanded much faster than the speed of light. Perhaps tachyons (superluminal particles) are profuse remnants from this early period, in which case our universe would be coupled to an invisible one containing myriads of tachyons that we could never see.

For the sake of argument let’s assume that the universe is teeming with distant tachyons. Then we couldn’t possibly detect them in present time, so how would we know whether or not they were there? Although we could never prove that tachyons do exist, this isn’t the same as proving that they don’t. There is supporting evidence that swarms of tachyons exist throughout the universe – namely dark matter, which I propose consists of gravity-emitting tachyons.

Although the gravitational effects of ordinary matter only attract, this strange dark stuff would also need to repel if it were to explain why the universe is inflating faster than can be accounted for without employing some other artifice[1]. But since an invisible substance attracting an object from behind would be indistinguishable from one repelling it from the front, if the real culprit is attraction from without by an enveloping layer of dark matter then the idea of repulsion becomes superfluous. Furthermore, if dark matter consists of gravity-emitting tachyons then that would explain how it got outside of the visible universe.

Gravity would have to be faster than light to reach us from an invisible source, but this is not precluded by Maxwell’s equations since, unlike light, gravity waves are not electromagnetic. In fact, gravity’s speed has never been actually measured; if it turns out to be faster than light then other tachyons could be wedged between its speed and light’s. These would be ‘dark’ if far enough away so that their photons haven’t arrived but their emitted gravitons, being faster yet, would still be able to affect the motion of visible objects. Furthermore, gravity would remain a tensor if C is replaced by C+Δ (gravity’s speed), where Δ is positive yet sufficiently small to mask any discrepancies with observation using today’s relatively imprecise instruments.

We are on firmer ground to assume that gravitons move at the ultimate speed than was Einstein when he posited photons as the fastest possible since it’s intuitively plausible that any particle with a singular characteristic, such as being fastest, is selected by virtue of some correlation with a universal quantity such as total mass, which gravity is related to, rather than arbitrarily as in the case of light.

If so, Einstein’s original theory is no longer strictly true and won’t protect us from the possibility of an even faster tachyon than the graviton. However this isn’t a problem because its gravity would never reach us (unlike dark matter, which is presumed to be slower than gravity) and thus could not affect our world in any possible way. So we can merely reword our theory to say that gravity is the fastest traveler throughout the known universe. Einstein’s theory, even if not exactly right, would still work perfectly well throughout the visible universe, only breaking down at velocities faster than light. In addition to solving the enigma of dark matter, the new hypothesis might also account for fringe phenomena such as superluminal influences (Bell’s theorem), quantum tunneling, shadow particles (antimatter), wave packets, and neutrinos.

I further explore this theory and its implications as well as other topics in modern science (including quantum theory) in my books “The Ultimate Reprieve” (Eloquent Books, ISBN 978-1-60911-592-0) and “A Grain of Salt” (Xlibris, ISBN 1-4134-5104-7). They can be purchased from the publisher, Amazon.com, and other major online outlets.

Daniel Romm

danromm.com