Saturday, December 11, 2004
Three questions from crescatsententia, updated.
answers first questions below
1. Both.
E.g.: Majors v Abell (7th cir 2004) is legally wrong because it conflicts with Talley, McIntyre, McConnell, note 88, and a handful of other cases.
[it is easy to say a lower court opinion is legally wrong, more difficult, but fun, to say a supreme court opinion is wrong. many of them are, but what exactly do we mean by wrong? wrong in the barnette sense, the scalia sense, the living constitution sense, illogical, other?]
Majors is practically and morally wrong because censorship is the worst form of hate speech, and censorship of "Vote for Smith" undermines democracy.
2. The holding, which can usually be expressed in one sentence.
A curious example is Chaplinski, the fighting words case. It has never been overruled, but is never followed, so it is distinguished to death.
3. I was going to say no: stare decisis is a judicial habit, not a constitutional
matter. And separation of powers would allow them to ignore or construe congressional meddling with stare decisis. (In the event of a conflict between the court's formal rules of procedure and statutes, the rules govern. Stare decisis is an informal rule.)
In another sense though, stare decisis -is- the constitution, in that unwritten british sense I've never quite understood.*
1: When deciding whether a case was wrongly decided and how wrong, what kind of wrong should courts look to? Its legal wrongness or its practical-moral wrongness? Both? Neither?
2: What is it that's supposed to stand? The concrete results of a particular case, the rationale used by that court to reach that result, or any rationale that could reach that result?
3: Is the constraint of stare decisis a constitutional rule, and if so what part of the constition? (The judicial power?) Can Congressional statutes have any effect on the rule of stare decisis in constitutional cases? What about in statutory ones-- could Congress generically proclaim that stare decisis should never have controlling weight in statutory cases?
* The British constitution has something to do with the common law. Once upon a time,
Norse customs and folkways resolved disputes. The thing about customs and folkways is that they evolve; the villages that don't have a workable set go under, those that do may thrive. So for example the norse custom of a jury of 12 aldermen who could agree an accused was telling the truth, and must be set free, was part of the setting out of which the common law emerged.
Stare decisis is a method for conserving what has worked over time and been tested under fire. The brits refer to this body of law and lore as a constitution, as in the health of an organism.
In America, on the other hand, we'd tossed out the accumulated wisdom of the ages and replaced with products of legislatures, which are committees, the members of which are auctioned to the highest bidder in a biennial folk rite called an election.
The golden bough by frasier is an anthropological study of these rites of succession.
Unlike the time-tested common law, which is fairly libertarian because it had to be in order to be competitive, legislative law is arbitrary and capricious, a war of all against all. It is also unknowably complex, so law students are too busy studying the tax code to have time to take legal history, and most lack any grounding in anthropology or memetics, so they lack the big picture. Forest, trees.
The dim memory that we once had a common law is left to handful of aging jurists and scholars, and a bunch of rural bible-and-gun totin' folks who are not always the best and the brightest, but are better than city slickers at preserving vital traditions and folkways. They tend to be written off as neonazis.
It remains to be seen if the communications revolution and the net can revive the heritage of the common law for the layperson and for new generations of lawyers.
That's my rant for the day, now I need to go to the hardware store before it gets dark like yesterday and the day before.
update: i interpet baude's recent letter as the functional equivalent of a comment so i add it here. he is against comments, i am for them, i just haven't sorted out how to enable them here. Somewhere here I have a .php forum that is a spot for comments for blogs without comments, such as this or crescat or volokh or instapundit. but i don't write there or read it, and nor i assume does anyone else.
I am not groking in fullness what he means by legally wrong, but rather than rehash it i suggest he blog more or study or perhaps sleep.
To reformulate it: Most people think that a case shouldn't be overturned "just" because it
was wrongly decided on legal grounds. (There are exceptions; maybe
J.Thomas). Most people also think that a legally correct case shouldn't
overturned "just" because it's wrong on moral grounds. (There are
exceptions; I won't name names.)
So: We have three hypothetical cases. One is probably wrong on the law,
but it's a close call. It's a small stretch. But its consequences are
very very very bad for the world. Let's call this case Dole.** Another one
is completely doctrinally ridiculous, but it's not that bad for the world
at all. Let's call this one Legal Tender. The third case is pretty clearly
wrong (more clear than Dole, less than Legal Tender), and its consequences
are bad, but not devastatingly bad. Let's call this one Goldberg.
Which of these three cases, if any, should be overruled? In other words,
if a case has to be more than "just" wrong, if it has to reach a certain
threshhold on the wrongness scale, is that doctrinal or moral bankruptcy
we're talking about?
** Hypothetically, Dole.
answers first questions below
1. Both.
E.g.: Majors v Abell (7th cir 2004) is legally wrong because it conflicts with Talley, McIntyre, McConnell, note 88, and a handful of other cases.
[it is easy to say a lower court opinion is legally wrong, more difficult, but fun, to say a supreme court opinion is wrong. many of them are, but what exactly do we mean by wrong? wrong in the barnette sense, the scalia sense, the living constitution sense, illogical, other?]
Majors is practically and morally wrong because censorship is the worst form of hate speech, and censorship of "Vote for Smith" undermines democracy.
2. The holding, which can usually be expressed in one sentence.
A curious example is Chaplinski, the fighting words case. It has never been overruled, but is never followed, so it is distinguished to death.
3. I was going to say no: stare decisis is a judicial habit, not a constitutional
matter. And separation of powers would allow them to ignore or construe congressional meddling with stare decisis. (In the event of a conflict between the court's formal rules of procedure and statutes, the rules govern. Stare decisis is an informal rule.)
In another sense though, stare decisis -is- the constitution, in that unwritten british sense I've never quite understood.*
1: When deciding whether a case was wrongly decided and how wrong, what kind of wrong should courts look to? Its legal wrongness or its practical-moral wrongness? Both? Neither?
2: What is it that's supposed to stand? The concrete results of a particular case, the rationale used by that court to reach that result, or any rationale that could reach that result?
3: Is the constraint of stare decisis a constitutional rule, and if so what part of the constition? (The judicial power?) Can Congressional statutes have any effect on the rule of stare decisis in constitutional cases? What about in statutory ones-- could Congress generically proclaim that stare decisis should never have controlling weight in statutory cases?
* The British constitution has something to do with the common law. Once upon a time,
Norse customs and folkways resolved disputes. The thing about customs and folkways is that they evolve; the villages that don't have a workable set go under, those that do may thrive. So for example the norse custom of a jury of 12 aldermen who could agree an accused was telling the truth, and must be set free, was part of the setting out of which the common law emerged.
Stare decisis is a method for conserving what has worked over time and been tested under fire. The brits refer to this body of law and lore as a constitution, as in the health of an organism.
In America, on the other hand, we'd tossed out the accumulated wisdom of the ages and replaced with products of legislatures, which are committees, the members of which are auctioned to the highest bidder in a biennial folk rite called an election.
The golden bough by frasier is an anthropological study of these rites of succession.
Unlike the time-tested common law, which is fairly libertarian because it had to be in order to be competitive, legislative law is arbitrary and capricious, a war of all against all. It is also unknowably complex, so law students are too busy studying the tax code to have time to take legal history, and most lack any grounding in anthropology or memetics, so they lack the big picture. Forest, trees.
The dim memory that we once had a common law is left to handful of aging jurists and scholars, and a bunch of rural bible-and-gun totin' folks who are not always the best and the brightest, but are better than city slickers at preserving vital traditions and folkways. They tend to be written off as neonazis.
It remains to be seen if the communications revolution and the net can revive the heritage of the common law for the layperson and for new generations of lawyers.
That's my rant for the day, now I need to go to the hardware store before it gets dark like yesterday and the day before.
update: i interpet baude's recent letter as the functional equivalent of a comment so i add it here. he is against comments, i am for them, i just haven't sorted out how to enable them here. Somewhere here I have a .php forum that is a spot for comments for blogs without comments, such as this or crescat or volokh or instapundit. but i don't write there or read it, and nor i assume does anyone else.
I am not groking in fullness what he means by legally wrong, but rather than rehash it i suggest he blog more or study or perhaps sleep.
To reformulate it: Most people think that a case shouldn't be overturned "just" because it
was wrongly decided on legal grounds. (There are exceptions; maybe
J.Thomas). Most people also think that a legally correct case shouldn't
overturned "just" because it's wrong on moral grounds. (There are
exceptions; I won't name names.)
So: We have three hypothetical cases. One is probably wrong on the law,
but it's a close call. It's a small stretch. But its consequences are
very very very bad for the world. Let's call this case Dole.** Another one
is completely doctrinally ridiculous, but it's not that bad for the world
at all. Let's call this one Legal Tender. The third case is pretty clearly
wrong (more clear than Dole, less than Legal Tender), and its consequences
are bad, but not devastatingly bad. Let's call this one Goldberg.
Which of these three cases, if any, should be overruled? In other words,
if a case has to be more than "just" wrong, if it has to reach a certain
threshhold on the wrongness scale, is that doctrinal or moral bankruptcy
we're talking about?
** Hypothetically, Dole.
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