The Download of the Week is Should We Have Lay Justices? by Adrian Vermeule. Here is the abstract:
By “lay justices” I mean justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins - methodological diversity, ideological diversity, and racial or ethnic or gender diversity - say little or nothing about professional diversity on the Court. I argue that the optimal number of lay justices is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill.
And a bit more from the body of the paper:
The relevant class is made up of cases in which law itself requires that judges make decisions based in part on nonlegal knowledge. There are two subclasses of cases within this class: (1) cases in which law draws upon specialized knowledge that is not itself legal, such as economic or medical or military expertise; (2) cases in which law draws upon knowledge that is neither specialized nor legal, such as knowledge of "the mystery of human life"5 or of "evolving standards of decency."6 In the former subclass, nonlawyers bring to the bench distinctive expertise that can make decisions better. In the latter subclass, lawyers have systematic and correlated biases induced by common professional training, but a bench composed of both nonlawyers and lawyers will have uncorrelated or random biases or at least a lower degree of correlation; the aggregate decisionmaking competence of the group will thus improve if the Court contains at least some lay justices. There are tradeoffs to be made, because lay justices will do worse than lawyer-justices in cases where specialized legal knowledge is all that matters. But no sensible guess about the shape of the tradeoffs would suggest that the optimal number of lay justices is zero. The costs and benefits sketched here apply, in dilute form on both the cost and benefit side, to dual-competent justices.
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