Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication

Abstract

Lawyers are not especially concerned, in the arguments they make or the explanations they give, to distinguish principles from policies. This is true of all branches of the profession, the judicial and academic, as well as the practicing bar. And it is unfortunate, for we can learn something about adjudication, perhaps more than a little, by attending to the distinction. Consider two cases, the first deceptively simple. The beneficiary of a life insurance policy murders the insured in order to collect the insurance. He is caught, convicted of homicide, and in a separate proceeding denied payment. In the process a rule is announced by the court that a beneficiary who intentionally takes the life of the insured may not collect the insurance.

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