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It’s always interesting how juries in legal trials are shielded from outside information and news so that their views won’t be prejudiced. “Impartial” jurors are supposed to decide cases based on the facts presented, not based on the knowledge and feelings they bring into the courtroom.

This rates mention in consideration of what’s happening in Rhode Island right now. In this instance Rhode Island State Superior Judge William Carnes is the person inside the Court whose views are tainted, and he’s not even hiding it.

For background, climate litigation continues to find its way to state courts. There’s no mystery as to why: certain judges are partial to the view that consumption of the very oil that is very much of  Planet Earth is also a threat to it. It’s an odd presumption on its face given oil’s aforementioned origins, but that’s a digression. For the purposes of this piece, it’s notable that judges bringing their own prejudices to subjects like global warming are being allowed to preside over cases in which the theory is put on trial. Large judgements against oil companies stand in the balance.

Carnes is a useful example here. Even though judges in the Ocean State operate under strict guidelines that require them “to consider only the evidence presented,” Carnes hasn’t even bothered to hide his reliance on Associated Press reports of global warming’s alleged bitter fruits in far-flung locales like the Seychelles. He’s used media accounts not produced by either side to inform a view he brings to court that Rhode Island has specifically been harmed by fuel consumption and its externalities, including “sea-level rise, rising temperatures, and severe storms.” Translated for those who need it, Carnes has become the jury.

Up front, all of what’s been described is a problem. The very symbol of law is judges equally weighing the merits of cases brought by opposing sides. Not so in Rhode Island, with potentially dire consequences for corporations with business before Carnes.  

To which some will reasonably reply that it was always foolhardy to presume impartiality on the part of jury or judge. It’s a fair point. To imagine tabula rasa in terms of opinion in any jury box or judge’s chambers reads as a bit naïve. And if you doubt this about judges, ask yourself why so much vetting takes place ahead of judicial appointments.

Still, it can’t be denied that if judges operate unconstrained by what has historically imbued the law with majesty (impartiality), it’s safe to say that courts will soon enough no longer be courts. Rhode Island has strict rules on the books about how cases must be decided based on the facts presented. About this simple rule, please stop and think about the arrogance of Carnes’s employment of outside information, and the reaction – most notably among judges - if juries were similarly bringing prejudicial knowledge sourced from outside the courtroom into the box. Carnes’s actions imply that what applies to the hoi polloi doesn't apply to him.

Are there solutions? Frequently the solutions are worse than the problem. Let's also not forget that judges are human, and humans are biased.

At the same time, what’s happening in courts calls for greater media oversight, along with the casting of a more critical eye on judicial perches that have a forever quality to them. Supposedly appointments-for-life gift us with less biased judges, but such a view is naïve. Human nature intrudes, which means judicial appointments for life on any level rate much greater future scrutiny.

John Tamny is editor of RealClearMarkets, Vice President at FreedomWorks, a senior fellow at the Market Institute, and a senior economic adviser to Applied Finance Advisors (www.appliedfinance.com). His latest book is The Money Confusion: How Illiteracy About Currencies and Inflation Sets the Stage For the Crypto Revolution.

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