Posted by Eugene Volokh:
"Deference":
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247261703
An exchange between the majority and the dissent in [1]Norwood v.
Vance, decided yesterday by the Ninth Circuit. The issue:
Defendants claim the district court erred by refusing to give the
following jury instruction:
In considering whether defendants were deliberately indifferent to
the need for outdoor exercise, the jury should consider that
defendants had a competing obligation under the Eighth Amendment to
ensure the safety of prisoners, including protecting prisoners from
each other. In considering these factors, you should give deference
to prison officials in the adoption and execution of policies and
practices that in their judgment are needed to preserve discipline
and to maintain internal security in a prison.
The district court initially agreed to the language but, after
plaintiff objected, declined to include it on the ground that
�deference� was �undefined.�
Part of Chief Judge Kozinski's argument for the majority:
The district court declined to give the proposed instruction
because the meaning of deference would not be �clear to a lay
person.� But �deference� is not Urdu or Klingon; it is a common
English word. See, e.g., Michael Crichton, Airframe 78 (1996)
(�[S]he certainly knew where all the bodies were buried. Within the
company, she was treated with a deference bordering on fear.�). It
may be true that deference has varied meanings, Dissent at 8515 n.
4, but so do most English words. If the district judge believed the
term needed further context or definition, he could have provided
it.
Part of Judge Thomas's dissent:
The majority criticizes the trial judge on this point, contending
that deference is a commonly understood lay term, and could not
have been confusing. However, its citation of language in the novel
Airframe illustrates the problem. Instructing a jury to give prison
officials deference, if deference commonly �borders on fear,� is
not a correct application of the law and would have amounted to
directing a verdict in favor of the government. Even in our sterile
legal environment, deference comes in varietals, such as Chevron
deference, Skidmore deference, and sardonic deference. See, e.g.,
Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J.,
dissenting) (�With all due deference, I am not at all convinced
that the additional barriers to the pursuit of truth which the
Court today erects rest on anything like the solid foundations
which decisions of this gravity should require.�). And, of course,
there is more than one breed of institutional deference relevant to
this case. See, e.g., McCord v. Maguire, 873 F.2d 1271, 1274 (9th
Cir.1989) (correctly noting that we must be �mindful of the
deference due the verdict of a jury�) (citation omitted). Here, the
trial judge quite rightly concluded that to give an instruction
that mixed legal standards and, in effect, told the jury to layer
deference upon deference, was not appropriate -- particularly when
the judge had already given an entirely proper instruction on the
topic. (I must, however, acknowledge that the majority is quite
correct in intuiting that, unsurprisingly, there is no Klingon word
for �deference.� See generally Marc Okrand, THE KLINGON DICTIONARY
(Star Trek 1992)).
Thanks to commenter Dave N for the pointer.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/07/08/07-17322.pdf
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