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Old 12-08-2010, 05:49 PM   #121
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Judges are specifically allowed to create de-facto legislation. It's called "stare decisis" and is one of the primary functions of the appellate courts.
How so? Stare decisis isn't a hard and fast rule -- it's a guiding principle, yes, but it does not prevent a judge from overruling a previous decision.
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Old 12-08-2010, 06:06 PM   #122
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If we don't get them they'll get us all.
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Old 12-08-2010, 06:28 PM   #123
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Stare decisis isn't a hard and fast rule -- it's a guiding principle, yes, but it does not prevent a judge from overruling a previous decision.
Nothing is a hard-and-fast rule. Laws enacted by one session of congress can be struck down by another. Policies of one presidential administration can be reversed by its successor. The Constitution itself can be altered by one amendment and then altered again in a contradictory way by a subsequent amendment.
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Old 12-08-2010, 06:31 PM   #124
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I feel like I'm missing your point. How does the fact that courts generally follow previous decisions (especially decisions in higher courts) mean that they are writing de facto legislation or creating policy?
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Old 12-08-2010, 06:41 PM   #125
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However, that is not what I am irritated at. As an example, for campaign finance, in some bizzaro world - corporations are now people.
Corporations have always been treated as persons to varying degrees; it's one of the primary reasons for having a corporation in the first place.

Nobody complains when a corporation is treated as a person for the purpose of holding it liable for torts or criminal misconduct.



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Even if I get ticketed, I know my attorney will have it down to speeding at 10+, or at MOST, 20+. People who can't afford an attorney will get reckless. You see this repeated throughout our judicial system - and it is ultimately what I also view as a plague on our political system. The sway of money is far too great in my eyes. Perhaps I'm wrong, I'll grant you that, but I really feel that moneyed interests have more influence in either than in the past several decades.
I think you're absolutely correct. The criminal justice system as a whole is, from a practical standpoint, disproportionately applied to those who can afford private legal representation and other related conveniences vs. those who cannot.

Sidebar: while they may not be aware of it, since the traffic court is an extension of the criminal court, any person accused of a moving violation is entitled to the same 6th Amendment protections (specifically the right to have the assistance of counsel) as a person accused of murder.


However, this does not prove that the "judiciary branch" as a whole, which includes all of the civil and appellate courts as well, is circling the drain. This argument is an excellent poster child for the concept of Severability.
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Old 12-08-2010, 06:48 PM   #126
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I think you're absolutely correct. The criminal justice system as a whole is, from a practical standpoint, disproportionately applied to those who can afford private legal representation and other related conveniences vs. those who cannot.

Sidebar: while they may not be aware of it, since the traffic court is an extension of the criminal court, any person accused of a moving violation is entitled to the same 6th Amendment protections (specifically the right to have the assistance of counsel) as a person accused of murder.


However, this does not prove that the "judiciary branch" as a whole, which includes all of the civil and appellate courts as well, is circling the drain. This argument is an excellent poster child for the concept of Severability.
Then let me give you a further personal example of the problem I see.

For a "political donation" of a few grand, and some face time with my local congresscritter (House, not Senate - may be cheaper) back many years ago, I successfully got him to vote against the DMCA.

He was, before that, 100% completely for it. And let me tell you, the face time did nada before the donation. But after the donation, he was all for trying to get the DMCA struck down.

I view this as a major problem in our system.
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Old 12-08-2010, 06:51 PM   #127
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Trust and Gov in the same sentence...lol You live in Cali right?
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Old 12-08-2010, 06:52 PM   #128
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Old 12-08-2010, 06:54 PM   #129
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Texas
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Old 12-08-2010, 07:05 PM   #130
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I feel like I'm missing your point. How does the fact that courts generally follow previous decisions (especially decisions in higher courts) mean that they are writing de facto legislation or creating policy?
How else could they do it?

Your point was that "We lost the courts when judges began wielding their power to accomplish social goals and create de facto legislation", and I'm struggling to understand what you meant by that if not this. Judges only have one tool at their disposal: they can render decisions. And because of the rule of Stare decisis, these decisions become a form of de-facto law.

Example: I am accused of intentionally giving Hustler AIDS by sharing a drug needle with him despite the fact that I witnessed you use that needle and I know that you are HIV positive. I am convicted of manslaughter and sentenced to Transportation.

At my appeal, I cite the case of Virginia v. Braineack, in which Braineack was found not guilty of negligent homicide for knowingly loading defective code into Slideruler's Megasquirt (which subsequently caused Slide's car to explode, killing him) because Slideruler was independently engaged in a criminal act at the time that the car exploded (he was fleeing from the police in the car in question, having just robbed a sperm bank.)

If the court of appeals finds that the circumstances in Virginia v. Braineack are sufficiently identical to those in California v. Perez, then it is no longer a criminal offense for me to murder someone by deliberately giving them an infected drug needle if that person expresses to me that they intend to use the needle for the purpose of injecting heroin into the space between their toes.

That's de-facto legislation.


Now if a Judge consistently demonstrates bias in rendering their decisions (eg: to accomplish a social goal), there are tools in place to remedy that situation, and it's nobody's fault but the electorate (or the legislature , in the case of a Supreme Court) if that Judge remains on the bench.
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Old 12-08-2010, 07:06 PM   #131
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For a "political donation" of a few grand, and some face time with my local congresscritter (House, not Senate - may be cheaper) back many years ago, I successfully got him to vote against the DMCA.
(...)
I view this as a major problem in our system.
Yup, it's a problem.

Not a Judicial one, though.
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Old 12-08-2010, 07:08 PM   #132
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Yup, it's a problem.

Not a Judicial one, though.
But that's my problem, with both the judicial and political aspects.

Money can turn a felony into an infraction in the judicial system, as an example

Money can cause a politican to support or not support a law you want.

Money in and of itself shouldn't have such a disproportionately large influence on our system. And to tie this back into the thread topic: You can see politicians maneuvering behind the scenes over the Wikileaks thing, and what they have exposed.

You see politicians squirming because corruption is starting to be revelealed.
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Old 12-08-2010, 07:10 PM   #133
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At my appeal, I cite the case of Virginia v. Braineack, in which Braineack was found not guilty of negligent homicide for knowingly loading defective code into Slideruler's Megasquirt (which subsequently caused Slide's car to explode, killing him) because Slideruler was independently engaged in a criminal act at the time that the car exploded (he was fleeing from the police in the car in question, having just robbed a sperm bank.)


lol'd hard
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Old 12-08-2010, 07:31 PM   #134
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Your point was that "We lost the courts when judges began wielding their power to accomplish social goals and create de facto legislation", and I'm struggling to understand what you meant by that if not this. Judges only have one tool at their disposal: they can render decisions. And because of the rule of Stare decisis, these decisions become a form of de-facto law.
Their role is to interpret, apply, and carry out the existing legislation -- not to create new policy by seeking results contrary to the original plain meaning of the legislation. What you're describing isn't the creation of new policy, it's simply the interpretation and enforcement of it.

Quote:
Now if a Judge consistently demonstrates bias in rendering their decisions (eg: to accomplish a social goal), there are tools in place to remedy that situation, and it's nobody's fault but the electorate (or the legislature , in the case of a Supreme Court) if that Judge remains on the bench.
And when the legislature is asleep at the switch, or worse yet, in favor of an activist court that wields its power to hand the legislature even more control? I'm thinking specifically of FDR's New Deal court-packing plan and the 2 justices that switched sides...and the nearly 60 years of ridiculous Federal intrusion under the auspices of "regulating commerce" until the 1995 Lopez decision.
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Old 12-08-2010, 08:19 PM   #135
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Their role is to interpret, apply, and carry out the existing legislation -- not to create new policy by seeking results contrary to the original plain meaning of the legislation.
Then perhaps it is I who fail to understand your point.

The concept of case law constituting de jure legislation predates the various wars in the middle east by at least several centuries, having evolved out of the English Common Law system. And to be certain, this idea is not expressly required by the US constitution, however its validity within the American legal system has been generally accepted since the very early history of this country, where it was recognized to provide both a continuity of justice (consistency of decision-making) as well as a limit on judicial power (one single court cannot independently create wild and radical interpretations which are at odds with a greater body of decisions which have been made before them.)




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And when the legislature is asleep at the switch, or worse yet, in favor of an activist court that wields its power to hand the legislature even more control?
It's a risk, and a highly non-trivial one at that. But this merely underscores the need to exercise the various checks and balances which exist within the judicial and legislative systems in order to maintain fairness and neutrality, rather than simply throwing up our hands and declaring the whole system to be "broken".


I've heard a lot of complaining (not just here, but in general) about how the courts, legislature, and executive branches are, in various ways and at various times, corrupt, inequitable, ineffective, and generally a bad idea.

So what's the alternative? Seriously? I mean, North Korea doesn't have these issues to contend with, but I'm not sure that a military dictatorship is the answer to our problems.
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Old 12-08-2010, 08:38 PM   #136
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Money can turn a felony into an infraction in the judicial system, as an example
Yes, that's a problem.

Solution: ban the hiring of private attorneys.

Everybody within the criminal system is forced to rely upon a public defender in order to fulfill their requirements for counsel under the 6th amendment. They shall have no recourse against counsel- if you wind up with the PD from "My Cousin Vinny" then tough luck.

Lawyers shall also be prohibited from all pro-bono work, since that would allow them to unfairly advantage those groups or organizations with which they agree or whom they wish to influence.

In matters of civil law (which is outside of the 6th amendment) everyone is forced to represent themselves. So if a big chemical company dumps a bunch of toxic waste into the lake behind my house which causes everyone to get testicular cancer, I'm on my own standing up them and trying to force them to pay compensation to the victims.

Or perhaps everybody receives an equal yearly allotment of "attorney-stamps" (like food-stamps) which are the only form of currency that may be used to pay an attorney? No, that doesn't work either- it'll just result in a black market for attorney-stamps, where the poor sell off their legal representation in exchange for crack, and big, evil corporations can buy as many attorney-stamps as they need with the proceeds they earned from selling tainted baby food.


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Money can cause a politican to support or not support a law you want.
Well that one is easy- just ban all political contributions altogether. No person who is a candidate for an elected office may accept contributions of money or fungible commodities from any other person or agency.

Hmm. Come campaign time, the only politicians who have money to spend on advertising will be the ones who can afford to pay for it themselves out of the executive severance package they received from the tainted baby food company. ****. We just created a de-facto oligarchy.



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Money in and of itself shouldn't have such a disproportionately large influence on our system.
Easy to say.

Difficult to implement in a society with a free-market economy, the first amendment, and a representative democracy.

None of these problems exist in a vacuum.
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Old 12-09-2010, 09:56 AM   #137
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I don't think we've had any of those three things since 1933.
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Old 12-09-2010, 10:34 AM   #138
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I don't think we've had any of those three things since 1933.
Amen. But they really started sliding in 1913 under Wilson.
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Old 12-09-2010, 10:44 AM   #139
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I've heard a lot of complaining (not just here, but in general) about how the courts, legislature, and executive branches are, in various ways and at various times, corrupt, inequitable, ineffective, and generally a bad idea.

So what's the alternative? Seriously? I mean, North Korea doesn't have these issues to contend with, but I'm not sure that a military dictatorship is the answer to our problems.
I think the complaining that you are hearing is not that we ought to abandon our system of government as described in the foundational documents -- rather that only drastic action has any chance of reversing the gradual slide into a centrally-planned economy, welfare state, etc.

Consider the founding of these United States -- the principles of the British system of government are not that much different really, just some differences in the form they take. As you already noted, our law system depends greatly on the British law system, especially Blackstone.

But the inconsistent application of those principles by the British -- that is, the difference between their foundational principles of government and the actual decisions and actions by that sitting government -- led the American colonies to draw a line in the sand and demand to be treated as full citizens.
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Old 12-09-2010, 11:37 AM   #140
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Transparency in government is never a bad thing.
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