Common Law System in Crisis? (A European Perspective)
Per
Hello folks&lawyers out there!
I am a law student in Sweden, currently doing a course on "General
theory of law" (in translation). We have in this course discussed the
implications of a civil law system versus a common law system.
A feature of the common law system which was discussed at some length
was the so-called "rule scepticism" that (for us Europeans) seems to
characterise common law legal thinking. The father of this idea was
the US judge Oliver Wendell Holmes. The view he advocated was (as far
as I understood) that rules are only minor factors in judicial
decision making, and that the views of the judge and the jury really
decide the case.
It seems to me that Holmes held that, for each legal problem, a very
large number of precedents can be brought forward, each giving a
different solution to the problem. Therefore it is impossible to give
any kind of "rule" for any problem.
One of our teachers related his experiences of law in the US. He told
us that there is no "principle of legality" in many states, ie people
can be sentenced for a crime even though there is no law which gives
an explicit description of that crime. At this point, it was a marvel
to see a group of law students speechless and utterly confounded. One
girl simply refused to believe these stories.
The rule-based or civil law approach which we use in Sweden and
Continental Europe operates by a different standard, it seems. Our
great guru, Carl Friedrich von Savigny (even you Americans must have
heard of him) saw the law as a system of rules. It was the task of the
lawmaker to make rules, the task of the judge to apply them, and the
task of the professor of law to systematise them.
The point of the matter is that a growing international economy might
need a more rule-based, and thus more predictable, legal system than
the common law system of the US and Britain. We have been told that
the US legal system is now under pressure to adapt its ancient
traditions to a modern world. In Britain, the impact of EC law has
been severe.
The conclusion seems to be that the common law systems are faced with
their greatest challenges so far. Could any common law lawyer comment
on this?
Per Andersson
jur stud, Stockholms Universitet
fherzo...@best.com
I'm a judge in the field of labor law, and hear cases where I decide
both the facts and the applicable law. Thus, I know very well that
it's often unclear just what the truth is, and which precedent should
be applied out of several competing choices. However, I doubt that
many lawyers or scholars of law here in the U.S. would desire to
change from the common law approach to a civil system. My bet would
be that most would say that the very 'imprecision' you cite in the
common law is also among its greatest strengths. There is a greater
chance under common law, we think, to reach results which are tempered
by humane considerations. We believe that more closely approximates
"justice" than merely following a series of rules to a rote result.
Fred
Per
On Fri, 20 Mar 1998 17:59:49 GMT, fherzo...@best.com wrote:
>I'm a judge in the field of labor law, and hear cases where I decide
>both the facts and the applicable law. Thus, I know very well that
>it's often unclear just what the truth is, and which precedent should
>be applied out of several competing choices. However, I doubt that
>many lawyers or scholars of law here in the U.S. would desire to
>change from the common law approach to a civil system. My bet would
>be that most would say that the very 'imprecision' you cite in the
>common law is also among its greatest strengths. There is a greater
>chance under common law, we think, to reach results which are tempered
>by humane considerations. We believe that more closely approximates
>"justice" than merely following a series of rules to a rote result.
>
>Fred
Thank you Fred for your nice answer, which I surely will be able to
use in my upcoming exams!
Per
Glenn L. Morgan, J. D.
We in Louisiana have to deal with the Common Law as to Criminal Law but
alas, under the American and Louisiana Constitutions, the Criminal Law
must be based on clear statutes, so it is really not Common Law anymore.
The common law maxims are generally ignored by the Judges in criminal
cases.
We have the Civil Law in our Civil Code but the commercial law has changed
some Civilian concepts. Some of our Judges claim to be Civilian but they
are not. The problem in the U. S. is the growth of the "Judge Cult" and
the "Case Method" in Law Schools. Even in Louisiana the younger
professors have adopted the concept of the "Judge Cult". Gone is the
certitude of the Civil Law Rules. As a lawyer I cannot give a clear
answer but have to give odds on this or that party prevailing. It is not
science but chance and the courts are becoming a great gambling
institution.
Glenn L. Morgan, J. D.
A Civilian at Heart
New Orleans, LA
fherzo...@best.com
On Fri, 20 Mar 1998 20:47:20 GMT, x...@z.se (Per) wrote:
>>Thank you Fred for your nice answer, which I surely will be able to
>>use in my upcoming exams!
>>
>>Per
And, thank you, Per, for your kind acknowledgement.
You seem to be a thoughtful person, and I wish you the very best
fortune in your upcoming exams. I remember my own, from 1960, as
though they were yesterday, . . the sheer terror. The fear of
failure. Years of utter drudgery down the drain. The thought of
having let my new bride down. . . . Ahhh, those were the days, my
friend, . . those were the days! . . . Fearing everything! . . .
Daring all! . . . And, . . in the end, . . winning all! . . . The
very best of luck to you. Even though I would not choose to go back
and start my career in law over again, I must admit that a part of me
is envious of you. Stressful as they may be, savor these days. Only
rarely will you again taste life so keenly.
Now, (stepping back from old-fogie-hood), allow me to observe that you
bring up an interesting concept. You say:
>>The point of the matter is that a growing international economy might
>>need a more rule-based, and thus more predictable, legal system than
>>the common law system of the US and Britain. We have been told that
>>the US legal system is now under pressure to adapt its ancient
>>traditions to a modern world. In Britain, the impact of EC law has
>>been severe.
>>
>>The conclusion seems to be that the common law systems are faced with
>>their greatest challenges so far.
I would like to hear more about how the U.S. legal system is thought
to be under pressure to adapt toward a civil law system. If so, it's
truly news to me. As an American, the "European view" seems always a
surprise. Europeans seem always to be so "sure" about what is
"American!"
As you may know, of the 50 states in the United States union, there is
one which operates with a civil law system, Louisiana. It has done
so since it's outset, nearly 200 years ago. One might think that, if
"superiority" exists, it would have begun, within 200 years, to infect
its neighboring inferiors. Yet, in over 40 years as a student and
lawyer, I have never heard even once of any claim that the civil
system is superior to the common law system in any respect. Thus, if
there is "pressure," it's been too subtle for me to detect. I hope
that you will inform your professors of this. Perhaps it may save
them some alarm.
To the contrary. Our commonly stated view here in the U.S. seems to
be that the adoption of England's common law has been the 'genius' at
the bedrock of our legal system. The core protector of our rights. .
. . Yet, not content, [and at seeming variance with our own stated
view], we Americans have, of course, engrafted onto the common law the
uniquely American perspective of democracy, under which our elected
representatives, through statutory law, are perfectly free to ignore
hundreds and hundreds of years of accumulated "wisdom," and just
merrily pronounce that "something else" shall be the law from now on,
(until we change it again, . . and again.) . . . . Somehow, when
commenting upon the American system, Europeans seem to fail to take
our legislatures into account. However, they are, after all, nothing
less than our own American version of a "civil law system," are they
not?
Going further, and still not content, Americans have added still
further to the mix of what we call "the law,", . . that is, "the
people."
For here in America, no matter what law you speak of, we quite
routinely vote in referenda. We Americans love to place this or that
"proposition" upon a ballot and, ignoring history, vote "yea" or
"nea," . . . blithely ripping and tearing whole volumes out of both
the common law and statutory law at the stroke of a ballot lever.
Even the very constitutions of states are routinely changed by
referendum, in which the "will" of the electorate seems based almost
entirely upon its perception of which side has the most clever T.V.
ads. . . . Here, again, Americans observe that when Europeans comment
upon "American law," they ignore this most important and elemental
factor. In the end, however, how can they ignore something which, in
the end, means that, to an American, "the law is whatever I say it is,
and not a damned thing more?"
Americans are generally much more distrustful of "rules," "laws," and
"lawyers," than are Europeans. We Americans love to continually prove
that our elected representatives, and lawyers, are no better than the
rest of us. (And are generally, far worse or less.)
However, over arching all that I've spoken of above, we Americans have
our beloved Constitution, which is acknowledged by virtually all
Americans to be the "supreme law of the land." Which I think of as
the greatest instrument of human freedom of all time. Our central
unifying force as a people. The way Americans explain themselves to
the rest of he world. . . . Americans love to quarrel endlessly
amongst themselves as to its meaning, . . . but I've never heard of an
American who didn't love it.
That's because all Americans love to say, "Don't mess with me! I got
my rights! And my 'rights' are whatever the hell I say they are. So,
bug off."
So, Per, my new friend, my only advice to you is take whatever you
hear about America, or the "American System," with a grain of salt.
It's not so easily summed up or categorized. As I've tried to show,
Americans freely borrow, engraft, enact, rip up, throw out, and
ignore. . . . Whatever they wish. . . . Whenever they wish.
Sounds like utter chaos, doesn't it? Seems like the very antithesis
of any "system," doesn't it? Sounds like bedlam to an outsider, don't
you think?
Only an insane person would recommend such a "system" to another, . .
right?
Just the opposite. . . . It all has a beauty which can't be described.
Hurley burley, . . yes. Unruly, . . yes. Raucous, . . yes.
But the marketplace of ideas has an order all its own. And which will
always tell the truth in the end.
Go back and tell your professors that the marketplace of ideas is the
very centrality of the "American system." And that it's the *one*
value with which Americans seem content and united. In the
vernacular, your professors "just don't get it."
My bet is that it's the one thing about America which will never
change, and the very last thing as to which America will feel
pressure.
It's the common law for us.
Americans "need" the chaos.
We love it.
Fred
Law Devil
>The point of the matter is that a growing international economy might
>need a more rule-based, and thus more predictable, legal system than
>the common law system of the US and Britain. We have been told that
>the US legal system is now under pressure to adapt its ancient
>traditions to a modern world. In Britain, the impact of EC law has
>been severe.
>
>The conclusion seems to be that the common law systems are faced with
>their greatest challenges so far. Could any common law lawyer comment
>on this?
Despite popular opinion, the U.S. does not have a truly common law legal
system.
Most law has been, or is in the process of being codified, whether it be
by federal statute, state statute, court rules, or governmental agency
regulations.
In its application, there are precedents interpreting the aforementioned
that are
contradictory. Yet, when one goes beneath the surface, it is clear that
each decision
is not so much a "common law" approach as an application of the statute,
rule or regulation
to the particular facts of the case at hand.
Regardless of the public face, the application of laws in both civil and
common law countries is
substantially similar. Although there are aberrations under both systems,
typically the judicial process
seeks to mete out justice according to local norms and "applies" the law in
such a way as to reach a
particular result.
Both the civil and common law traditions are derived from a common source
and the first attorneys were in fact priests in ecclesiastical courts. The
law was for a specific purpose (doing God's will). The procedures
implemented in achieving this end, whether Romanic in origin or created
(e.g. trial by ordeal), where simply means to the end.
Whether the civil law or common law approach is "better" is subjective at
best. It is clear that the two systems now have more in common than
differences.
As to the EC, however, the U.S. national interests will preclude adopting
some type of world-wide uniform system of law, whether it be civil or common
law. A common international law framework (e.g. the U.N.) is viable only to
the extent that it serves U.S. interests. This may be considered unfair by
non-U.S. constituencies, but nationalism is still deeply embedded in the
U.S. psyche. To the extent there would be any change, it would be more
likely to see a few larger U.S. states secede and retain common law systems
than for the U.S. to adopt a one-world legal system.
From an economic standpoint, many in the U.S. are looking forward with
anticipation to the havoc that European unification will do based upon the
belief that the national and EC bureaucrats can do far more damage
collectively than could be accomplished by independent nation states.
=:-> Law Devil <-:=
Per
On Sat, 21 Mar 1998 03:42:58 GMT, fherzo...@best.com wrote:
>You seem to be a thoughtful person, and I wish you the very best
>fortune in your upcoming exams.
---cut---
> Stressful as they may be, savor these days. Only
>rarely will you again taste life so keenly.
I know the feeling, Fred. (I am however not married).
>I would like to hear more about how the U.S. legal system is thought
>to be under pressure to adapt toward a civil law system. If so, it's
>truly news to me. As an American, the "European view" seems always a
>surprise. Europeans seem always to be so "sure" about what is
>"American!"
Well, this subject has come up in a few seminars. I should begin by
explaining that Sweden has for a long time been a country central to
international arbitration. This means that many of the professors of
the Stockholm Faculty of Law have experience as arbitrators in suits
between corporations (and sometimes even states!). These professors,
then, feel "what's in the air".
The point is that the international contracts which are the object of
these suits include clauses that specify the law under which the suit
should be tried. One might expect that US law would be dominant in
these arbitrations, given the US dominance of the world economy, but
from what I've been told, this is not the case. In fact the tendency
seems to be to move, e.g., to French or German law. Especially French
law has always been regarded as extremely formalistic. ("If it's not
in the Code Napoléon, then it doesn't exist!"). The reason for this
may be that the parties feel that the predictability of a civil law
system makes up for its tendency towards excessive rigidity.
Now if big US enterprises like the civil law system abroad, why
shouldn't they begin to want it at home? It is clear that we're
talking about very slow processes, but it's still, as I'm told, a
clear tendency.
Swedish law is, by the way, clearly on the side of French and German
law, but it is a bit less formalistic.
>As you may know, of the 50 states in the United States union, there is
>one which operates with a civil law system, Louisiana. It has done
>so since it's outset, nearly 200 years ago. One might think that, if
>"superiority" exists, it would have begun, within 200 years, to infect
>its neighboring inferiors. Yet, in over 40 years as a student and
>lawyer, I have never heard even once of any claim that the civil
>system is superior to the common law system in any respect. Thus, if
>there is "pressure," it's been too subtle for me to detect. I hope
>that you will inform your professors of this. Perhaps it may save
>them some alarm.
For myself I don't like to think about one legal system as "superior"
to another. It's simply that the common law and the civil law stress
different aspects of legal reasoning. The common law states: "Justice
in each particular case" but the civil law is more "The rules must be
followed."
>Americans are generally much more distrustful of "rules," "laws," and
>"lawyers," than are Europeans. We Americans love to continually prove
>that our elected representatives, and lawyers, are no better than the
>rest of us. (And are generally, far worse or less.)
The American distrust of lawyers is well known and, to my mind,
deplorable. Yet the show-offs of the OJ Simpson and Louise Woodward
trials have probably contributed to this trend.
By the way, isn't it true that almost all elected representatives in
the US are lawyers?
>However, over arching all that I've spoken of above, we Americans have
>our beloved Constitution, which is acknowledged by virtually all
>Americans to be the "supreme law of the land." Which I think of as
>the greatest instrument of human freedom of all time. Our central
>unifying force as a people. The way Americans explain themselves to
>the rest of he world. . . . Americans love to quarrel endlessly
>amongst themselves as to its meaning, . . . but I've never heard of an
>American who didn't love it.
That's interesting. Sweden was the first country in Europe (and as far
as I know in the world) to adopt a written constitution (in 1772).
This was replaced in 1809 and then in 1975. None of these documents
has however been regarded with any particular affection by the
citizens. (Especially not the most recent one. Some people are already
talking about replacing it.)
>That's because all Americans love to say, "Don't mess with me! I got
>my rights! And my 'rights' are whatever the hell I say they are. So,
>bug off."
I've heard of that. European rights are a much more sensitive subject.
In fact, we have established a sort of "pan-European" constitutional
rights system. This means that most European states now have two "Bill
of Rights": one homegrown and one European!
>Sounds like utter chaos, doesn't it? Seems like the very antithesis
>of any "system," doesn't it? Sounds like bedlam to an outsider, don't
>you think?
Actually, yes.
>Go back and tell your professors that the marketplace of ideas is the
>very centrality of the "American system." And that it's the *one*
>value with which Americans seem content and united. In the
>vernacular, your professors "just don't get it."
Obviously not.
>My bet is that it's the one thing about America which will never
>change, and the very last thing as to which America will feel
>pressure.
>
>It's the common law for us.
>
>Americans "need" the chaos.
>
>We love it.
It certainly seems so.
Per
Per
>From an economic standpoint, many in the U.S. are looking forward with
>anticipation to the havoc that European unification will do based upon the
>belief that the national and EC bureaucrats can do far more damage
>collectively than could be accomplished by independent nation states.
Well, European history has amply shown the damage that can be done by
independent nation states. That's the reason we're now going about it
the other way. European unification is a long-term project, but it has
so far been one-way traffic towards greater unity. We'll see what
becomes of it.
Per
Paul
I very much enjoyed your post dealing with American's penchant for changing
our legal system. I think it might somewhat overstate our willingness to
upset our state constitutions, at least here in the Midwest. Significant
(at least to the majority of voters) changes in our state constitution here
in Indiana don't come all that often and we don't see the type of ballot
questions I read about so often in other states, especially out west.
However, that just illustrates your main point -- because of the diversity
that results from 50 states with their own laws, one must be careful about
making any generalization about American law.
fherzo...@best.com wrote in message
<351513f3....@nntp.best.com>...
>. . .
>For here in America, no matter what law you speak of, we quite
>routinely vote in referenda. We Americans love to place this or that
>"proposition" upon a ballot and, ignoring history, vote "yea" or
>"nea," . . . blithely ripping and tearing whole volumes out of both
>the common law and statutory law at the stroke of a ballot lever.
>Even the very constitutions of states are routinely changed by
>referendum, in which the "will" of the electorate seems based almost
>entirely upon its perception of which side has the most clever T.V.
>ads. . . . Here, again, Americans observe that when Europeans comment
>upon "American law," they ignore this most important and elemental
>factor. In the end, however, how can they ignore something which, in
>the end, means that, to an American, "the law is whatever I say it is,
>and not a damned thing more?"
> . . .
fherzo...@best.com
On Sat, 21 Mar 1998 07:01:48 -0500, "Paul" <smi...@iquest.net> wrote:
>>I very much enjoyed your post dealing with American's penchant for changing
>>our legal system. I think it might somewhat overstate our willingness to
>>upset our state constitutions, at least here in the Midwest.
You're quite right. I could have made that distinction.
I'm from the midwest, and certainly agree with your point that change
is less readily embraced there than in certain other areas.
Personally, I favor that policy, and believe that law should not be
made or changed in haste.
Yet, here in California, the great majority seem to treasure the
"quick change" methods of the referendum. The thinking seems to be,
"Oh, I'll go ahead and change it, . if I don't like the way it turns
out, I'll change it again." Some criticize that we make important
changes based more on whimsey than reason. However, it certainly has
the one essential element. It's the will of the people.
Fred
fherzo...@best.com
On Sat, 21 Mar 1998 10:15:22 GMT, x...@z.se (Per) wrote:
Per, just a few comments, and I'll let you get back to your studies.
>>Now if big US enterprises like the civil law system abroad, why
>>shouldn't they begin to want it at home?
Actually, in the U.S. financial and corporate worlds, alternative
dispute resolution, including the use of arbitration, is more the norm
than is litigation. There are some lawsuits, but they're far less
common than in the rest of our society.
>>The American distrust of lawyers is well known and, to my mind,
>>deplorable. Yet the show-offs of the OJ Simpson and Louise Woodward
>>trials have probably contributed to this trend.
Well, they didn't help matters. But, my observation is that
Americans' antipathy towards lawyers extends as far back as the
country's beginnings.
>>By the way, isn't it true that almost all elected representatives in
>>the US are lawyers?
Quite true. But, of course Americans seem to hold almost identical
views towards their politicians as they do towards their lawyers.
The interesting thing, however, is that, no matter how Americans may
revile lawyers and politicians, I can think of no other people who are
so quick to use both.
So, don't be alarmed at our plight. Law is still a growth industry in
America, and, clearly, that's the will of the people.
Take care, and good luck on your exams.
Fred
ext
Law Devil wrote:
> Despite popular opinion, the U.S. does not have a truly common law legal
> system.
> Most law has been, or is in the process of being codified, whether it be
> by federal statute, state statute, court rules, or governmental agency
> regulations.
>
> In its application, there are precedents interpreting the aforementioned
> that are
> contradictory. Yet, when one goes beneath the surface, it is clear that
> each decision
> is not so much a "common law" approach as an application of the statute,
> rule or regulation
> to the particular facts of the case at hand.
>
...which seems a far cry from what has elsewhere been stated, namely,
that we opperate under some common law derived from the British. That's
not to say that one cannot appeal to the common law, rather than the
statutory laws and rules which legislators have crafted with a
preference that favors government interest over the rights of the
people.
The First few amendments of the Bill Of Rights seem to use the word
"people" to mean individual citizens. Surely then the later 'reserved
powers' amendment, which reserves rights not taken by the federal
government for the "states and the people", reserves said rights without
specificity as to which ones, or what proportion of rights, go to the
state and which go to the people.
Therefore, I wonder why it is that the 'states' have concluded that it
they have jurisdiction to claim the entirety of the remaining 'pie' of
rights and powers, taking all the rights and powers for themselves, so
as to lord overwhelming control over the people. It would seem to me,
them, that a peoson may also claim a personal jurisdiction and an
anuthority to claim rights and powers if they individually chose.
Afteral, if the governments's jurisdiction is by way of force at the
point of a gun the the people are not free, except for the enumerated
fredoms of the conctitution - and we know there is an amendment
reffering to non enumerated rights and powers.
Maybe some learned judge or lawyer can list five or six of the
non-enumerated rights and powers of the people (as compared to the thes
of thousands of laws enforced by the state)?????????
ext
Glenn L. Morgan, J. D. wrote:
>
> We in Louisiana have to deal with the Common Law as to Criminal Law but
> alas, under the American and Louisiana Constitutions, the Criminal Law
> must be based on clear statutes, so it is really not Common Law anymore.
> The common law maxims are generally ignored by the Judges in criminal
> cases.
> We have the Civil Law in our Civil Code but the commercial law has changed
> some Civilian concepts. Some of our Judges claim to be Civilian but they
> are not. The problem in the U. S. is the growth of the "Judge Cult" and
> the "Case Method" in Law Schools. Even in Louisiana the younger
> professors have adopted the concept of the "Judge Cult". Gone is the
> certitude of the Civil Law Rules. As a lawyer I cannot give a clear
> answer but have to give odds on this or that party prevailing. It is not
> science but chance and the courts are becoming a great gambling
> institution.
> Glenn L. Morgan, J. D.
> A Civilian at Heart
> New Orleans, LA
Yes. Even when rules and prior law applies a court may re-invent the
wheel and declare that the earth is flat.
In which case, unless you can afford the journey of appeals across an
ocean of further ambiguity and get a motion aproved to exume Columbus to
testify as an expert witness, you're may be better off first looking for
the attorney that last played golf with the judge (and lost).
Garry W
x...@z.se (Per) wrote:
>One of our teachers related his experiences of law in the US. He told
>us that there is no "principle of legality" in many states, ie people
>can be sentenced for a crime even though there is no law which gives
>an explicit description of that crime. At this point, it was a marvel
>to see a group of law students speechless and utterly confounded. One
>girl simply refused to believe these stories.
One story is of Dr. Kevorkian and assisted suicide. If I remember it right
the Michigan Supreme Court has decided that in Michigan assisting a suicide
is a prosecutable common-law (unwritten) crime.
Does anyone know if that decision stood up? There would certainly be some
constitutional due-process implications.
Does anyone know of any *other* story, of any other modern-day "common law"
criminal case in the U.S.? Does it really still happen?
just curious
Garry
Paul
fherzo...@best.com wrote in message
<3514e432....@nntp.best.com>...
>>>By the way, isn't it true that almost all elected representatives in
>>>the US are lawyers?
>
>Quite true. But, of course Americans seem to hold almost identical
>views towards their politicians as they do towards their lawyers.
> . . .
I haven't looked in a while, but the last time I did far less than a
majority of the elected representatives in the Indiana General Assembly were
lawyers. It was less than 20% when I looked a few years back and I doubt it
has changed much since. I also doubt the majoirty of the elected city and
county representatives in my county are lawyers. I can't say about
Congress.
leges
>>>>By the way, isn't it true that almost all elected representatives in
>>>>the US are lawyers?
>>
>>Quite true. But, of course Americans seem to hold almost identical
>>views towards their politicians as they do towards their lawyers.
Lawyers are a small minority of U.S. elected representatives and do not
form the majority of federal or state legislatures. Every year, lawyers
comprise a small percentage of elected offices. There are two
primary reasons for this trend: (1) more nonlawyers are running for office;
and
(2) lawyers can typically make more $$$ in private practice.
As to U.S. perceptions, lawyers are perceived to be lower than politicians.
However, the polling numbers for both groups are misleading. Although the
public
dislike these groups in general, there are favorable ratings for a
constituent's
personal elected representatives and attorneys. In short, the public
dislikes both professions,
but makes exceptions for the individuals who personally represent them.
Daniel Myers
On Fri, 20 Mar 1998, Per wrote:
> Hello folks&lawyers out there!
>
> I am a law student in Sweden, currently doing a course on "General
> theory of law" (in translation). We have in this course discussed the
> implications of a civil law system versus a common law system.
>
> A feature of the common law system which was discussed at some length
> was the so-called "rule scepticism" that (for us Europeans) seems to
> characterise common law legal thinking. The father of this idea was
> the US judge Oliver Wendell Holmes. The view he advocated was (as far
> as I understood) that rules are only minor factors in judicial
> decision making, and that the views of the judge and the jury really
> decide the case.
>
> It seems to me that Holmes held that, for each legal problem, a very
> large number of precedents can be brought forward, each giving a
> different solution to the problem. Therefore it is impossible to give
> any kind of "rule" for any problem.
>
> One of our teachers related his experiences of law in the US. He told
> us that there is no "principle of legality" in many states, ie people
> can be sentenced for a crime even though there is no law which gives
> an explicit description of that crime. At this point, it was a marvel
> to see a group of law students speechless and utterly confounded. One
> girl simply refused to believe these stories.
>
> The rule-based or civil law approach which we use in Sweden and
> Continental Europe operates by a different standard, it seems. Our
> great guru, Carl Friedrich von Savigny (even you Americans must have
> heard of him) saw the law as a system of rules. It was the task of the
> lawmaker to make rules, the task of the judge to apply them, and the
> task of the professor of law to systematise them.
>
> The point of the matter is that a growing international economy might
> need a more rule-based, and thus more predictable, legal system than
> the common law system of the US and Britain. We have been told that
> the US legal system is now under pressure to adapt its ancient
> traditions to a modern world. In Britain, the impact of EC law has
> been severe.
>
> The conclusion seems to be that the common law systems are faced with
> their greatest challenges so far. Could any common law lawyer comment
> on this?
>
> Per Andersson
> jur stud, Stockholms Universitet
>
>
Sorry, I'm not an expert on this subject , but I couldn't resist the
temptation of replying.
You might consult an American law school text on the subject of "Conflict
of Laws", which has to do with disputes when the laws of more than one
jurisdiction is involved. These law school texts are primarily "local"
(U.S., that is), but since the U.S. has a really big hodge-podge of
jurisdictions with their own style of laws, you might find some of the
text helpful. You might also consult sources on "critical legal
studies". There's one by Roberto Unger which is pretty difficult reading,
if that's what you enjoy.
I must have read my history books wrong, because I thought Sweden was not
influenced very much by the Napoleonic code (the dominant civil code), and
it's judges developed a system of "stare decisis" case law and a tradition
of "rule skepticism" which was similar to maybe what you're describing.
Savigny, who I've never heard of, I read was more into "historical"
jurisprudence, perhaps trying to codify ancient Germanic customs - please
correct me if I'm wrong.
California, where I live, is theoretically a "common law" state, but it
has a set of codes (another theoretical construct) which is similar to the
Napoleonic code - penal code, civil code, code of civil procedure,
evidence code... - and I guess this pattern comes from spanish
influence since California was taken from Mexico in 1848. Of course, the
U.S. federal government has the U.S. Code,
Laws, statutes, decisions, legal systems - they're tools of the trade and
tools of classism and unfair advantage. Ideas - including the idea of
justice - do not seem to exist in a vacuum unless you're a delusional
believer in religion or metaphysics. Therefore, as a matter of certainty,
you're always looking at a government of people, not laws.
In addition to the "common law, civil law" dichotomy, you might consider
throwing "socialist law" into your research too, now that Western Europe
may have to share an increased piece of the pie with the people of that
tradition too.
(Finally) Can you be more specific about people in the US who are
criminally sentenced under vague laws? Maybe some examples?
El Fantasmo
In article <Pine.BSF.3.96.98032...@shell5.ba.best.com>,
Daniel Myers <d...@best.com> wrote:
> On Fri, 20 Mar 1998, Per wrote:
>
> > Hello folks&lawyers out there!
> >
> > I am a law student in Sweden, currently doing a course on "General
> > theory of law" (in translation). We have in this course discussed the
> > implications of a civil law system versus a common law system.
> >
> > A feature of the common law system which was discussed at some length
> > was the so-called "rule scepticism" that (for us Europeans) seems to
> > characterise common law legal thinking. The father of this idea was
> > the US judge Oliver Wendell Holmes. The view he advocated was (as far
> > as I understood) that rules are only minor factors in judicial
> > decision making, and that the views of the judge and the jury really
> > decide the case.
> >
> > It seems to me that Holmes held that, for each legal problem, a very
> > large number of precedents can be brought forward, each giving a
> > different solution to the problem. Therefore it is impossible to give
> > any kind of "rule" for any problem.
> >
It has been awhile since I read Holmes, but I believe this overstates his
position. The common law is based on stare decisis, giving effect to the
rule of precedent. There is also the idea that law must give help to
those who need to predict the legal consequences of their behavior; There
must be rules which can guide conduct.
We also have a concept referred to as Jury Negation, in which the jury may
disregard the law and impose a verdict on the facts to fit their concept
of justice in the case. Presumably this is what happened in the OJ
Simpson criminal case. Juries are not told they have this power, and it
does not appear explicitly in any constitution or statute I have seen.
Theoretically, juries are to decide the facts only and apply the law as
they are instructed. However, there are procedures and standards to
review factual determinations by juries for adequate support, except for
the case of acquitals in criminal cases where the jury's decision is
unreviewable by reason of the Double Jeopardy Clause.
> > One of our teachers related his experiences of law in the US. He told
> > us that there is no "principle of legality" in many states, ie people
> > can be sentenced for a crime even though there is no law which gives
> > an explicit description of that crime. At this point, it was a marvel
> > to see a group of law students speechless and utterly confounded. One
> > girl simply refused to believe these stories.
> >
Do not believe these stories. Our Constitutional concept of Due Process
requires that one be given adequate warning of what conduct is prohibited
before criminal sanctions are imposed. Defense arguments of vagueness in
criminal statutes are common.
> > The conclusion seems to be that the common law systems are faced with
> > their greatest challenges so far. Could any common law lawyer comment
> > on this?
> >
> > Per Andersson
> California, where I live, is theoretically a "common law" state, but it
> has a set of codes (another theoretical construct) which is similar to the
> Napoleonic code - penal code, civil code, code of civil procedure,
> evidence code...
Common law is law made and applied by judges deciding cases before them.
The US and its States have virtually abandoned this idea in favor of codes
adopted by the legislative branches. Every subject of rights, remedies
and procedure are addressed by statutory law. In my humble opinion,
common law is no longer descriptive of American jurisprudence.
Gregory D. Lantz
JD, Indiana University Bloomington, 1975
fherzo...@best.com
On Mon, 23 Mar 1998 20:41:50 -0800, Daniel Myers <d...@best.com> wrote:
(Lots of good stuff snipped to get to the points I'm interested in
responding to)
>>California, where I live, is theoretically a "common law" state, but it
>>has a set of codes (another theoretical construct) which is similar to the
>>Napoleonic code - penal code, civil code, code of civil procedure,
>>evidence code... - and I guess this pattern comes from spanish
>>influence since California was taken from Mexico in 1848. Of course, the
>>U.S. federal government has the U.S. Code,
Not to mention the Code of Federal Regulations. Or the Federal
Register. Or the Rules and Regulations of the dozens of various and
sundry Federal agencies. Or the Code of Military Justice. Or, . .
oh, well, . . you get the point.
>>Laws, statutes, decisions, legal systems - they're tools of the trade and
>>tools of classism and unfair advantage. Ideas - including the idea of
>>justice - do not seem to exist in a vacuum unless you're a delusional
>>believer in religion or metaphysics. Therefore, as a matter of certainty,
>>you're always looking at a government of people, not laws.
The very first code, . . that of Hammurabi, . . had lots of rules.
And the people were able to use them to have a very good idea, in
advance, of the outcome of any particular legal dispute.
Yet, as a judge, I balked when I read the fifth one:
5. If a judge try a case, reach a decision, and present his
judgment in writing; if later error shall appear in his
decision, and it be through his own fault, then he shall pay
twelve times the fine set by him in the case, and he shall be
publicly removed from the judge's bench, and never again
shall he sit there to render judgement.
Hey, . . I'll take my chances. But, I'll admit that ol' Ham was too
tough for me.
And, if you think I'm a wimp, check out his stuff on domestic
relations!
Look at http://www.yale.edu/lawweb/avalon/hamframe.htm
Think twice, guys, before shootin' moves on a maiden!
Just a word to the wise!
Fred
Per
On Mon, 23 Mar 1998 20:41:50 -0800, Daniel Myers <d...@best.com> wrote:
>Sorry, I'm not an expert on this subject , but I couldn't resist the
>temptation of replying.
>
>You might consult an American law school text on the subject of "Conflict
>of Laws", which has to do with disputes when the laws of more than one
>jurisdiction is involved. These law school texts are primarily "local"
>(U.S., that is), but since the U.S. has a really big hodge-podge of
>jurisdictions with their own style of laws, you might find some of the
>text helpful. You might also consult sources on "critical legal
>studies". There's one by Roberto Unger which is pretty difficult reading,
>if that's what you enjoy.
>
>I must have read my history books wrong, because I thought Sweden was not
>influenced very much by the Napoleonic code (the dominant civil code), and
>it's judges developed a system of "stare decisis" case law and a tradition
>of "rule skepticism" which was similar to maybe what you're describing.
>Savigny, who I've never heard of, I read was more into "historical"
>jurisprudence, perhaps trying to codify ancient Germanic customs - please
>correct me if I'm wrong.
Well, actually, there seem to be some misunderstandings here.
Swedish law was not very much influenced by the Napoleonic code for
the reason that Sweden already had a code, dating from 1734. The "case
law" system you refer to has never been a feature of Swedish law, and
we have never had a "stare decisis"-rule. I can't imagine where you
got that from! (You could say that in large areas of commercial law
Swedish courts rely heavily on Supreme Court precedents. This does
not, however, mean that we have anything close to a common law
system.)
Savigny was a scholar of Roman law. His followers, however, were very
interested in the ancient Germanic customs. This could have presented
a problem, given the fact that Christianity had destroyed much of the
sources of heathen Germany. But in fact ancient Germanic law had
survived on Scandinavian soil, where it was codified in the so-called
Provincial Codes (I don't have a good English term). These codes date
appr. 12-14th century. The Swedish code from 1734 comprises an
amalgamation of these laws and Roman law. In fact, some of these
ancient laws (albeit very few) still survive in modern Swedish law!
There is no real tradition of rule scepticism in Sweden. The main
school here is called Scandianavian Legal Realism (as opposed to
American LR) which was, in essence, a radical critique of natural law
concepts. A follower of this school, the Dane Alf Ross, developed this
into a philosophy which comes very close to American rule scepticism.
>Laws, statutes, decisions, legal systems - they're tools of the trade and
>tools of classism and unfair advantage. Ideas - including the idea of
>justice - do not seem to exist in a vacuum unless you're a delusional
>believer in religion or metaphysics. Therefore, as a matter of certainty,
>you're always looking at a government of people, not laws.
This is a very Scandinavian Realist statement.
>In addition to the "common law, civil law" dichotomy, you might consider
>throwing "socialist law" into your research too, now that Western Europe
>may have to share an increased piece of the pie with the people of that
>tradition too.
We don't want any socialist law. In fact, much traditional law in
Eastern Bloc countries seems to have survived and can now be used in
reconstructing the legal system.
>(Finally) Can you be more specific about people in the US who are
>criminally sentenced under vague laws? Maybe some examples?
I don't have any examples. A few people here seem to have, though.
Per Andersson
jur stud, Stockholms Universitet.
Daniel Myers
On Mon, 23 Mar 1998, El Fantasmo wrote:
> > >
> > > A feature of the common law system which was discussed at some length
> > > was the so-called "rule scepticism" that (for us Europeans) seems to
> > > characterise common law legal thinking. The father of this idea was
> > > the US judge Oliver Wendell Holmes. The view he advocated was (as far
> > > as I understood) that rules are only minor factors in judicial
> > > decision making, and that the views of the judge and the jury really
> > > decide the case.
> > >
> > > It seems to me that Holmes held that, for each legal problem, a very
> > > large number of precedents can be brought forward, each giving a
> > > different solution to the problem. Therefore it is impossible to give
> > > any kind of "rule" for any problem.
> > >
>
> It has been awhile since I read Holmes, but I believe this overstates his
> position. The common law is based on stare decisis, giving effect to the
> rule of precedent. There is also the idea that law must give help to
> those who need to predict the legal consequences of their behavior; There
> must be rules which can guide conduct.
>
"General propositions do not decide concrete cases", Lochner v. New York,
198 U.S. 45,76; 25 S.Ct. 539,547; 49 L.Ed. 937 (1905), Holmes, dissenting.
dhm
Kenneth Hamilton
The drug-crisis-hysteria that the U.S. was burdened with in the 80's resulted
in legislation, as far as have understood, that limited a judge's ability to
rule on drug possession/solicitation/manufacturing cases that appeared before
him on a "case by case" basis, resulting in a pattern of "mandatory minimum"
sentences that locked up a great many Americans for arguably victimless
crimes. Doesn't a legal system with at least some respect of "common law" act
in the favor of a defendant charged with a crime that occurred within an
unavoidably unique set of circumstances that civil law application will utterly
fail to address?
--
Kenneth
San Diego, California
> . . .
> The "case law" system you refer to has never been a feature of Swedish law,
> and
> we have never had a "stare decisis"-rule. I can't imagine where you
> got that from! (You could say that in large areas of commercial law
> Swedish courts rely heavily on Supreme Court precedents. This does
> not, however, mean that we have anything close to a common law
> system.). . .
Per
On Tue, 24 Mar 1998 19:48:14 -0800, Daniel Myers <d...@best.com> wrote:
>> It has been awhile since I read Holmes, but I believe this overstates his
>> position. The common law is based on stare decisis, giving effect to the
>> rule of precedent. There is also the idea that law must give help to
>> those who need to predict the legal consequences of their behavior; There
>> must be rules which can guide conduct.
>>
>
>"General propositions do not decide concrete cases", Lochner v. New York,
>198 U.S. 45,76; 25 S.Ct. 539,547; 49 L.Ed. 937 (1905), Holmes, dissenting.
"I always say in conference that no case can be settled by general
propositions, that I will admit any general proposition you like and
decide the case either way." O.W. Holmes, cited in Rumble, W.E.,
American Legal Realism (Ithaca, NY: 1968), pp. 39-40.
It would be interesting to know what Holmes really meant by this
famous statement. Now, if he referred to very general principles such
as the UN Declaration of Human Rights of 1948, then I think Holmes is
obviously right. A concrete case cannot possibly be decided with a
simple reference to, say, the right of free speech.
Yet it seems difficult to hold that every rule in the law can be
classified as a "general proposition". A simple example from Swedish
law: chapter 4 article 3 of the Swedish Code of Real Property states
that a provision making a purchase of real property dependent on
conditions must be explicitely stated in the written purchase
contract, otherwise such a provision is null and void. (My own
atrocious translation.)
Is this a "general poposition"? In fact there seems to be little
leeway for the judge in interpreting this rule. If it isn't in the
contract, then it's void. There are of course marginal cases (e.g., an
unclear contract clause) but in the great majority of cases the rule
is clear. That is, "decide the case either way" would be manifestly
absurd. If there is a rule, then apply it.
Or what do you think? You americans are after alled schooled in
Holmes' tradition.
Cliff Dilloway
Can someone from the England and Wales jurisdiction comment. The
Scots do these thing differently you know.
The objective of the law has to be to be fair. You can make fair
rules. The application of fair rules does not necessarily produce a
fair judgement.
At one point x...@z.se says
Well, this subject has come up in a few seminars. I should begin by
explaining that Sweden has for a long time been a country central to
international arbitration. This means that many of the professors of
the Stockholm Faculty of Law have experience as arbitrators in suits
between corporations (and sometimes even states!). These professors,
then, feel "what's in the air".
The point is that the international contracts which are the object of
these suits include clauses that specify the law under which the suit
should be tried. One might expect that US law would be dominant in
these arbitrations, given the US dominance of the world economy, but
from what I've been told, this is not the case. In fact the tendency
seems to be to move, e.g., to French or German law. Especially French
law has always been regarded as extremely formalistic. ("If it's not
in the Code Napoléon, then it doesn't exist!"). The reason for this
may be that the parties feel that the predictability of a civil law
system makes up for its tendency towards excessive rigidity.
End of quote.
The choice of law to be used in an arbitration is not based on the
broad principles set out here. It is much more a matter of a country
having adopted procedural laws for arbitration that suit the process.
The England and Wales jurisdiction has adopted in the Arbitration Act
1966 a whole set of rules intended to attract arbitrations to London.
I do not expect to be involved in any of these arbitrations but those
interested will find explanations of what is involved and links to
this new law on my website.
Cliffd
Cliff Dilloway http://www.endispute.co.uk
Law Devil
>in legislation, as far as have understood, that limited a judge's ability to
>rule on drug possession/solicitation/manufacturing cases that appeared before
>him on a "case by case" basis, resulting in a pattern of "mandatory minimum"
>sentences that locked up a great many Americans for arguably victimless
>crimes.
the duly elected representatives that particular punishments be meted out for
certain crimes regardless of the circumstances. It does resemble civil law
insomuch as strict application prevents judicial activism.
>in the favor of a defendant charged with a crime that occurred within an
>unavoidably unique set of circumstances that civil law application will utterly
>fail to address?
Per
>The choice of law to be used in an arbitration is not based on the
>broad principles set out here. It is much more a matter of a country
>having adopted procedural laws for arbitration that suit the process.
I know this. I was referring to the material law under which the
contract should be tried. Even if an arbitration takes place in
London, there is nothing to prevent the arbitrators to use whatever
legal system the parties have decided.
Per
Kenneth Hamilton
Is judicial activism not a term to describe a ruling on the basis of
one's own personal and subjective philosophy, rather than on the basis
of the law, civil or otherwise? Do not all of the facts in a case
contribute to some extent how a case should be ruled on, rather than the
violation of one individual common or civil law (e.g., nonfulfillment of
contract)? While rulings on damages are not identical to rulings on
liability, should not a judge have discretion with respect to each?
--
Kenneth
San Diego, California
Law Devil wrote:
> If you are in favor of eliminating mandatory minimum sentences and
> replacing itwith judicial activism under the guise of "common law",
> please remember thatwhen it comes to sentencing judicial activists
> fall on both sides of the spectrum.For every bleeding heart judge on
Law Devil
>While rulings on damages are not identical to rulings on
>liability, should not a judge have discretion with respect to each?
No.
As to liability, the only discretion a judge should have is as
trier-of-fact in a bench (non-jury) trial.
As to damages, if the legislature has established a system of
civil or criminal penalties, a judge should
apply the law, not his personal personal preferences.
Jon Beaver
"Law Devil" <le...@postoffice.ptd.net> wrote:
Don't we always have to choose between consistency and flexibility? If
we give our judges flexibility, then we have to expect them to inject
their own personal ideas of what the law requires them to do, and to
occasonally do what they want to do. If we rely on our legislature,
we have to accept that their laws won't always anticipate every
situation or conform to constitutional standards.
-Jon Beaver
Law Devil
>Don't we always have to choose between consistency and flexibility? If
>we give our judges flexibility, then we have to expect them to inject
>their own personal ideas of what the law requires them to do, and to
>occasonally do what they want to do. If we rely on our legislature,
>we have to accept that their laws won't always anticipate every
>situation or conform to constitutional standards.
No. If the judiciary applies the law enacted by the legislature, rather
than
creating it from the bench, there is still both consistency and flexibility.
Consistency exists in uniform application of a law rather than
morphing it into whatever a judge believes it should be. Flexibility exists
inasmuch
as unpopular laws will be changed when the citizenry apply pressure to
their elected representatives and/or replace said representatives.
An unaccountable judiciary is far more likely to subvert the law than
a legislator who has to answer to his/her constituents.
As to "constitutional standards", notwithstanding Marbury v. Madison,
I would suggest that a law should be presumed constitutional (unless it
directly contradicts an express provision in the constitution), and the
judiciary does not have the constitutional authority to exercise a veto
power over the will of the people as reflected by their duly elected
representatives.
=:-> Law Devil <-:=
Emanating penumbras give me a headache.
nickt...@mcmail.com
Can it seriously be maintained that EC law is anything other than
rule-sceptic? It is clearly a vehicle for the implementation of broadly
expressed policies. The ECJ has repeatedly shown itself willing to use
legal precedents and rules in a most creative fashion. To suggest that
the English legal system is encountering difficulties with European law
because it is more precisely drafted that our common law is, with
respect, quite wrong.
Furthermore, it is a fallacy to suggest that a codified civil system
does not permit of ambiguities or interpretation. How could it be
otherwise, when any given rule must be applied in an indefinite number
of factual situations?
I'd be interested in your further comments.
Best wishes
Nick Tucker
Barrister
Manchester, England
Daniel Myers
On Fri, 27 Mar 1998 nickt...@mcmail.com wrote:
> Furthermore, it is a fallacy to suggest that a codified civil system
> does not permit of ambiguities or interpretation. How could it be
> otherwise, when any given rule must be applied in an indefinite number
> of factual situations?
>
Not to speak of *factual* indeterminacies.
dhm
Per
On Fri, 27 Mar 1998 18:08:16 -0800, nickt...@mcmail.com wrote:
>Can it seriously be maintained that EC law is anything other than
>rule-sceptic? It is clearly a vehicle for the implementation of broadly
>expressed policies. The ECJ has repeatedly shown itself willing to use
>legal precedents and rules in a most creative fashion. To suggest that
>the English legal system is encountering difficulties with European law
>because it is more precisely drafted that our common law is, with
>respect, quite wrong.
Very nice to hear from an English lawyer, Nick.
Is the common law _drafted_? I do not think that the rule-based EC law
is "more precise" than the common law, but it is still rule-based. My
point is that application of EC law demands civil law legal reasoning
instead of common law legal reasoning. (I'm certainly not an expert in
this field.)
The legal activism of the ECJ is well-known. Still any precedent in
the ECJ has the origin in the interpretation of the EC treaty. (For
example Cassis de Dijon in articles 30&37 of the treaty).
The dualism between common law and statute law found in common law
systems is not an issue in EC law since the statutes (the treaty,
regulations and directives) are seen as the primary sources of law.
In my opinion, the EC law is decidedly a civil law system.
>Furthermore, it is a fallacy to suggest that a codified civil system
>does not permit of ambiguities or interpretation. How could it be
>otherwise, when any given rule must be applied in an indefinite number
>of factual situations?
Certainly there are large "grey areas" in which the civil law rules
cannot give a clear answer to a problem. Yet one should observe that
in many cases the law _is_ clear. The "rule scepticism" of Justice
Holmes seems to imply that this is not the case. To my mind this
position becomes rather strained when viewed from the standpoint of a
rule-based, civil law system.
>
>I'd be interested in your further comments.
So would I.
>
>Best wishes
>
>Nick Tucker
>
>Barrister
>
>Manchester, England
Best wishes.
Per Andersson
Jur stud, Stockholms Universitet.
angel
In the US, rules do not apply even when they are specific. Neither do
elections.
I once challenged my school district which was attempting to hold the
FOURTH ELECTION VOTE to try to pass the budget. (they apparently didn't
like the previous three electtion vote outcomes in which the voters said
"NO") So much for democracy and the voice of the peoiple.
Anyway, I brought it to the school attorney's attetion that the school
only published one notice of the vote, in only one newspaper, instead of
the three notices in two newspapers is required by law. Thereby I
alleged the school failed to follow the law and could not hold the
election utill they complied with the notice requirement of the law.
The school attorney's reply to me was to say that he disagreed with my
INTERPRETATION of the law!
Of course the school held the election without notice; the vote passed
and our school TAXES WENT UP 40% in that year alone.
When I told this to our governor (a lawyer), on state wide TV, he
laughed and said he hoped he didn't own proeperty there. Two months
later he lost the election. Guess he should have run for president when
he was asked - or maybe he should have demanded a second election; or
third election ect.
Jon Beaver
"Law Devil" <le...@postoffice.ptd.net> wrote:
So, it looks like you believe we have more to fear from an
unrestrained judiciary than from an unrestrained legislature. Hmnnn .
. . Well, that's ONE point of view. But have you noticed that you
don't live on this planet by yourself?
-Jon Beaver
Law Devil
>So, it looks like you believe we have more to fear from an
>unrestrained judiciary than from an unrestrained legislature. Hmnnn .
Unrestrained legislature? Am I missing something? Each prior post
expressly stated that the legislature can be restrained by the citizenry
applying pressure on their legislators and/or replacing said legislators.
How is this unrestrained?
The judiciary serves a different role than the legislative branch. The
legislature enacts laws, and the judiciary applies the rule of such
laws to particular cases. If the judiciary chooses to apply the law
contrary to its express provisions, the judiciary is trespassing
into the domain of the legislative branch.
>. . Well, that's ONE point of view.
>But have you noticed that you
>don't live on this planet by yourself?
What wit! If you can't attack the argument, attack the person. Why not
ignore the facts, the delineated roles of the branches of government, and
turn this into a relativist debate?
=:-> Law Devil <-:=
Assumes there are other occupants of planet or else posting to newsgroups
would be rather silly.
Jerry E. Norton
: Per wrote:
[cut]
: >
: > One of our teachers related his experiences of law in the US. He told
: > us that there is no "principle of legality" in many states, ie people
: > can be sentenced for a crime even though there is no law which gives
: > an explicit description of that crime. At this point, it was a marvel
: > to see a group of law students speechless and utterly confounded. One
: > girl simply refused to believe these stories.
: >
[cut]
: >
: > The point of the matter is that a growing international economy might
: > need a more rule-based, and thus more predictable, legal system than
: > the common law system of the US and Britain. We have been told that
: > the US legal system is now under pressure to adapt its ancient
: > traditions to a modern world. In Britain, the impact of EC law has
: > been severe.
: >
: > The conclusion seems to be that the common law systems are faced with
: > their greatest challenges so far. Could any common law lawyer comment
: > on this?
: >
: > Per Andersson
: > jur stud, Stockholms Universitet
It is really not correct to say that there is no principle of legality in
American criminal law. In the federal system and the laws of most states,
nothing can be a crime without a statute specifically making it a crime.
In a very few states common law crimes may continue to be recognized, but
those which are recognized are so clearly understood and consistently
acknowledged that their existence is a clear proposition of law. If any
state were to give to the judiciary the uncontrolled power to create
crimes which you say that your professor suggested, the United States
Supreme Court would find this a violation of the Fourteenth Amendment to
the United States Constitution.
In other matters dealing with trade, the United States has become quite
accustomed to dealing with codified laws, the most notable example being
the Uniform Commercial Code. As to the future, the U.S. will adapt its
laws to the needs of international trade, but it is not likely that it
will soon surrender domestic sovereignty. The common law process may
continue to apply to domestic affairs, such as tort law, while the rules
of commerce are codified.
Jerry Norton
we...@ezo.net
>: Per wrote:
>: > One of our teachers related his experiences of law in the US. He told
>: > us that there is no "principle of legality" in many states, ie people
>: > can be sentenced for a crime even though there is no law which gives
>: > an explicit description of that crime. At this point, it was a marvel
>: > to see a group of law students speechless and utterly confounded. One
>: > girl simply refused to believe these stories.
>: > on this?
getting his US legal education in some prison somewhere. That is the
location of some of our greatest legal scholars! In Ohio there are no
common law crimes, and great effort is gone to to inform the
defendant of the offense which has brought him before the Court, at
the first appearance, as well as at sentencing; the offense and range
of penalties are addressed. This also seems to be the case in the few
instances when I have appeared in Federal Courts. I cannot speak for
the other 49 states, but I cannot help but think the same rule
applies, due to constitutional mandates. I personally have a great
deal of problems with racketeering and conspircay laws, as being
vague/overbroad, but beyond that, it is a very dumb person who claims
he has no idea of the offense with which is charged/convicted. Poverty
and ignorance go hand in hand with crime though, so you will meet
these morons from time to time, but in the main they are simply in
false denial.
Glenn L. Morgan, J. D.
nickt...@mcmail.com wrote:
> Can it seriously be maintained that EC law is anything other than
> rule-sceptic? It is clearly a vehicle for the implementation of broadly
> expressed policies. The ECJ has repeatedly shown itself willing to use
> legal precedents and rules in a most creative fashion. To suggest that
> the English legal system is encountering difficulties with European law
> because it is more precisely drafted that our common law is, with
> respect, quite wrong.
>
> Furthermore, it is a fallacy to suggest that a codified civil system
> does not permit of ambiguities or interpretation. How could it be
> otherwise, when any given rule must be applied in an indefinite number
> of factual situations?
>
> I'd be interested in your further comments.
>
> Best wishes
>
> Nick Tucker
>
> Barrister
>
> Manchester, England
In Louisiana we have system part Civil and part Common law, but the only
time Common Law is used for is to explain general principles in Criminal
law and Procedure. All Criminal law and Procedure is spelled out in
Statute but because of poor drafting, the statutes are often unclear.Our
Civil Code regulates general obligations, personal status and contracts,
but in the last 20 years we have seen the adoption of most of the Uniform
Commercial Code and the demand of the banks. Our Civil Code has been
modified by poor codal revision and by Judges who distort the common use of
language in order to arrive at their intended result.
With some cases, the source of the older Articles of the Code is found in
Roman or French Law, the Scholars of Roman or French Law or in old Spanish
Laws. Unfortunately few judges today have a good Civilian background and
read neither Latin, French or Spanish.
Early lawyers coming to Louisiana loved the Codal approach and one of the
early Jurists was a Common Lawyer. My own great great great grandfather
was a Common Lawyer trained in Virginia and Kentucky, who was sent to
Louisiana by Thomas Jefferson to be a Justice of the Territorial Supreme
Court. He seemed to love the French Code and pushed for the first Reporter
in Louisiana.
Louisiana gave England one of its sons, J. P. Benjamin, after the War
between the States. Mr. Benjamin used his Civil Law experience to author
"Benjamin on Sales".
There is no way to avoid the function of the Judge to decide the unprovided
for case or to apply old law to new facts, but the Bench, Bar and
Legislature should work together to provide a clear Code of laws that all
men may used to regulate their conduct.
Glenn L. Morgan, J. D.
New Orleans and Lafayette, LA
USA
Daniel Myers
On Fri, 27 Mar 1998, angel erroneously wrote:
> Per wrote:
> >
> > On Tue, 24 Mar 1998 19:48:14 -0800, Daniel Myers <d...@best.com> wrote:
> >
> > >> It has been awhile since I read Holmes, but I believe this overstates his
> > >> position. The common law is based on stare decisis, giving effect to the
> > >> rule of precedent. There is also the idea that law must give help to
> > >> those who need to predict the legal consequences of their behavior; There
> > >> must be rules which can guide conduct.
> > >>
> > >
I didn't write that above paragraph, OK? It was written by El Fantasmo
<fantasmS...@azstarnet.com>, a/k/a Gregory D. Lantz JD, Indiana
University Bloomington, 1975. I didn't put El Fantasmo's name from the
quote in my previous reply. In retrospect, I should have. Sorry. dhm
> > >"General propositions do not decide concrete cases", Lochner v. New York,
> > >198 U.S. 45,76; 25 S.Ct. 539,547; 49 L.Ed. 937 (1905), Holmes, dissenting.
> >
I did insert this Lochner reference.
Per replied:
> > "I always say in conference that no case can be settled by general
> > propositions, that I will admit any general proposition you like and
> > decide the case either way." O.W. Holmes, cited in Rumble, W.E.,
> > American Legal Realism (Ithaca, NY: 1968), pp. 39-40.
> >
> > It would be interesting to know what Holmes really meant by this
> > famous statement. Now, if he referred to very general principles such
> > as the UN Declaration of Human Rights of 1948, then I think Holmes is
> > obviously right. A concrete case cannot possibly be decided with a
> > simple reference to, say, the right of free speech.
> >
> > Yet it seems difficult to hold that every rule in the law can be
> > classified as a "general proposition". A simple example from Swedish
> > law: chapter 4 article 3 of the Swedish Code of Real Property states
> > that a provision making a purchase of real property dependent on
> > conditions must be explicitely stated in the written purchase
> > contract, otherwise such a provision is null and void. (My own
> > atrocious translation.)
> >
> > Is this a "general poposition"? In fact there seems to be little
> > leeway for the judge in interpreting this rule. If it isn't in the
> > contract, then it's void. There are of course marginal cases (e.g., an
> > unclear contract clause) but in the great majority of cases the rule
> > is clear. That is, "decide the case either way" would be manifestly
> > absurd. If there is a rule, then apply it.
> >
> > Or what do you think? You americans are after alled schooled in
> > Holmes' tradition.
> >
> > Per Andersson
> > jur stud, Stockholms Universitet
> --------------
I won't have access to Rumble's book for a few days.
From my readings, the common law tradition in America was not centered
around Holmes, even though he wrote a book called "The Common Law", but it
involved a lot of people over a long time span.
In 1829, Justic...@ussupremecourt.gov wrote:
> The common law of England is not to be taken in all respects to be that
> of America. Our ancestors brought with them its general principles, and
> claimed it as their birthright; but they brought with them and adopted
> only that portion which was applicable to their situation.
> Van Ness v. Pacard, 2 Pet. 137.
Throughout the 19th century, there were proponents and opponents of the
civil law system in America. At the time of the American founding, the
only law books in English were by Coke and Blackstone, and nobody wanted
to adopt a civil law system from a foreign language. The people you
probably want to study about in the civil law vs.common law debate are
Roscoe Pound, Holmes to some extent, Dudley Field (Justice Field's
brother) and James Carter, a practicing lawyer who exalted the common law
system. I think you'll find Pound's views about Savigny different than
how Per described them here.
I'm still not an expert on this stuff, but the "rule skepticism" school
which Per associates with Holmes may be a red herring. At the time of
Holmes' dissent in Lochner, there had been dominant judicial values which
supported laissez faire and the Spencerian doctrine of survival of the
fittest, which he was dissenting against in Lochner. Previously, Justice
Stephen Field's dissents after the American Civil War (1861-1865)
actually supported laissez faire (he was an old gold-rusher in
California), but as time went on Field's dissenting views became the
majority view by the time of Justice Peckham's majority ruling in Lochner.
Now it was Holmes turn to wage the uphill battle as a dissenter, which he
waged in subsequent years often along side of Louis Brandeis. Eventually,
laissez faire as represented by the doctrine "liberty of contract" became
more and more rejected in favor of state regulation which increasingly
protected vested interests, controlled immigrants, minorities, etc. I
believe a death-blow case against the so-called "Lochner era" which had
rampantly struck down a lot of state laws was Nebbia vs. blah (1934).
dhm
homeless
-----------------------
LOCHNER v. NEW YORK, from http://www.tourolaw.edu/patch/Lochner/HOLMES.html
MR. JUSTICE HOLMES dissenting.
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY
concurred, dissenting.
MR. JUSTICE PECKHAM, delivering the opinion of the court.
MR. JUSTICE HOLMES dissenting
I regret sincerely that I am unable to agree with the judgment in this
case, and that I think it my duty to express my dissent.
This case is decided upon an economic theory which a large part of the
country does not entertain. If it were a question whether I agreed with
that theory I should desire to study it further and long before making up
my mind. But I do not conceive that to be my duty, because I strongly
believe that my agreement or disagreement has nothing to do with the right
of a majority to embody their opinions in law. It is settled by various
decisions of this court that state constitutions and state laws may
regulate life in many ways which we as legislators might think as
injudicious or if you like as tyrannical as this, and which equally with
this interfere with the liberty to contract. Sunday laws and usury laws
are ancient examples. A more modern one is the prohibition of lotteries.
The liberty of the citizen to do as he likes so long as he does not
interfere with the liberty of others to do the same, which has been a
shibboleth for some well-known writers, is interfered with by school laws,
by the Post Office, by every state or municipal institution which takes
his money for purposes thought desirable, whether he likes it or not. The
Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.
The other day we sustained the Massachusetts vaccination law. Jacobson v.
Massachusetts, 197 U.S. 11. United States and state statutes and decisions
cutting down the liberty to contract by way of combination are familiar to
this court. Northern Securities Co. v. United States, 193 U.S. 197. Two
years ago we upheld the prohibition of sales of stock on margins or for
future delivery in the constitution of California. Otis v. Parker, 187
U.S. 606. The decision sustaining an eight hour law for miners is still
recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody
convictions or prejudices which judges are likely to share. Some may not.
But a constitution is not intended to embody a particular economic theory,
whether of paternalism and the organic relation of the citizen to the
State or of laissez faire. It is made for people of fundamentally
differing views, and the accident of our finding certain opinions natural
and familiar or novel and even shocking ought not to conclude our judgment
upon the question whether statutes embodying them conflict with the
Constitution of the United States.
General propositions do not decide concrete cases. The decision will
depend on a judgment or intuition more subtle than any articulate major
premise. But I think that the proposition just stated, if it is accepted,
will carry us far toward the end. Every opinion tends to become a law. I
think that the word liberty in the Fourteenth Amendment is perverted when
it is held to prevent the natural outcome of a dominant opinion, unless it
can be said that a rational and fair man necessarily would admit that the
statute proposed would infringe fundamental principles as they have been
understood by the traditions of our people and our law. It does not need
research to show that no such sweeping condemnation can be passed upon the
statute before us. A reasonable man might think it a proper measure on the
score of health. Men whom I certainly could not pronounce unreasonable
would uphold it as a first instalment of a general regulation of the hours
of work. Whether in the latter aspect it would be open to the charge of
inequality I think it unnecessary to discuss.
---------------------
mspam
we...@ezo.net wrote:
>
> >: Per wrote:
> >: > One of our teachers related his experiences of law in the US. He told
> >: > us that there is no "principle of legality" in many states, ie people
> >: > can be sentenced for a crime even though there is no law which gives
> >: > an explicit description of that crime. At this point, it was a marvel
> >: > to see a group of law students speechless and utterly confounded. One
> >: > girl simply refused to believe these stories.
> : > their greatest challenges so far. Could any common law lawyer comment
> >: > on this?
> Well I would refuse to believe it also, as your teacher must have been
> getting his US legal education in some prison somewhere. That is the
> location of some of our greatest legal scholars! In Ohio there are no
> common law crimes, {snip}
I know of someone who, having purchased an old state trooper vehichle,
was ticketed for "not havinghis car properly painted" - though no such
statute exists.
The actual statute requires that the vehicle be "altered".
In his case, the state had altered the vehicle by removing the lights
and emblems. They also gave his a letter stating that it would be highly
unlikely that a person would mistake the car for a trooper car since the
car was painted in the old colors which had since been changed for
several years.
The local hanging judge found him guilty.
On appeal to the Supreme Court the judge upheld the lower court saying
only that " if you can aford a house, you can aford to pay a trafic
ticket".
No what does owning a house have to do the question before the court ?
Besides which, the man didn't own a house!
He had been a a public opponent of property (shelter) taxes, and thereby
I believe the jusdge assumed he owned a house and was punishing him
based on his political views rather than the law.
Justin Schwartz
A Swedish law student asks about what he calls "rule skepticism," which he
misleadingly attributes to Holmes. On this viewm, in its most extreme
form, there are no legal rules, because any two cases can be
distinguished, and the law is a matter of what the judge or jury had for
breakfast. Judge Jerome Frank of the 2d Circuit did actually hold
something like this. Versions of it are popular with the Critical Legal
Studies scholars, all law professors. It was not maintained by Holmes,
certainly, who thought that the law often gave determinate answers. His
great book The Common Law explains in detail how the CL arrived at some of
the answers. Certainly rule skepticism is not a predomonant view among
judges, although many lawyers in practice maintain it.
If the view is correct, it would apply to a civil law as well as a common
law system. It certainly would apply to the many codes (commercial code,
bankruptcky code, criminal code, etc.) which we have in America. Thea
rgument would be that any rulke can be be intrerpreted in many ways and
any interpretation can be applied or not to any case with a little
ingenuity deoending on how you want to result to come out. I don't believe
this is true in general, but if it is true, and to the extent that it is,
the difference between CL and civil law is no difference at all.
The poster who told you to look at conflicts of laws treatises gave you
good advice. Clearly, integration of the US and the UK into the world
economy will pose and has posed important conflicts questions. But here in
America, with 50 state and, effectively, 11 or 12 federal systems (each
Circuit is the Law in its jurisdiction until the Supreme Court settles an
issue), we do know about how to deal with conflicts of law if anyone does.
--Justin Schwartz, OSU Law, 3L
: On Fri, 20 Mar 1998, Per wrote:
: > Hello folks&lawyers out there!
: >
: > I am a law student in Sweden, currently doing a course on "General
: > theory of law" (in translation). We have in this course discussed the
: > implications of a civil law system versus a common law system.
: >
: > A feature of the common law system which was discussed at some length
: > was the so-called "rule scepticism" that (for us Europeans) seems to
: > characterise common law legal thinking. The father of this idea was
: > the US judge Oliver Wendell Holmes. The view he advocated was (as far
: > as I understood) that rules are only minor factors in judicial
: > decision making, and that the views of the judge and the jury really
: > decide the case.
: >
: > It seems to me that Holmes held that, for each legal problem, a very
: > large number of precedents can be brought forward, each giving a
: > different solution to the problem. Therefore it is impossible to give
: > any kind of "rule" for any problem.
: >
: > One of our teachers related his experiences of law in the US. He told
: > us that there is no "principle of legality" in many states, ie people
: > can be sentenced for a crime even though there is no law which gives
: > an explicit description of that crime. At this point, it was a marvel
: > to see a group of law students speechless and utterly confounded. One
: > girl simply refused to believe these stories.
: >
: > The rule-based or civil law approach which we use in Sweden and
: > Continental Europe operates by a different standard, it seems. Our
: > great guru, Carl Friedrich von Savigny (even you Americans must have
: > heard of him) saw the law as a system of rules. It was the task of the
: > lawmaker to make rules, the task of the judge to apply them, and the
: > task of the professor of law to systematise them.
: >
: > The point of the matter is that a growing international economy might
: > need a more rule-based, and thus more predictable, legal system than
: > the common law system of the US and Britain. We have been told that
: > the US legal system is now under pressure to adapt its ancient
: > traditions to a modern world. In Britain, the impact of EC law has
: > been severe.
: >
: > The conclusion seems to be that the common law systems are faced with
: > their greatest challenges so far. Could any common law lawyer comment
: > on this?
: >
: > Per Andersson
: > jur stud, Stockholms Universitet
: >
: >
: Sorry, I'm not an expert on this subject , but I couldn't resist the
: temptation of replying.
: You might consult an American law school text on the subject of "Conflict
: of Laws", which has to do with disputes when the laws of more than one
: jurisdiction is involved. These law school texts are primarily "local"
: (U.S., that is), but since the U.S. has a really big hodge-podge of
: jurisdictions with their own style of laws, you might find some of the
: text helpful. You might also consult sources on "critical legal
: studies". There's one by Roberto Unger which is pretty difficult reading,
: if that's what you enjoy.
: I must have read my history books wrong, because I thought Sweden was not
: influenced very much by the Napoleonic code (the dominant civil code), and
: it's judges developed a system of "stare decisis" case law and a tradition
: of "rule skepticism" which was similar to maybe what you're describing.
: Savigny, who I've never heard of, I read was more into "historical"
: jurisprudence, perhaps trying to codify ancient Germanic customs - please
: correct me if I'm wrong.
: California, where I live, is theoretically a "common law" state, but it
: has a set of codes (another theoretical construct) which is similar to the
: Napoleonic code - penal code, civil code, code of civil procedure,
: evidence code... - and I guess this pattern comes from spanish
: influence since California was taken from Mexico in 1848. Of course, the
: U.S. federal government has the U.S. Code,
: Laws, statutes, decisions, legal systems - they're tools of the trade and
: tools of classism and unfair advantage. Ideas - including the idea of
: justice - do not seem to exist in a vacuum unless you're a delusional
: believer in religion or metaphysics. Therefore, as a matter of certainty,
: you're always looking at a government of people, not laws.
: In addition to the "common law, civil law" dichotomy, you might consider
: throwing "socialist law" into your research too, now that Western Europe
: may have to share an increased piece of the pie with the people of that
: tradition too.
: (Finally) Can you be more specific about people in the US who are
: criminally sentenced under vague laws? Maybe some examples?
: dhm
: http://www.best.com/~dhm
Justin Schwartz
Judicial activism is a term used to describe a decision one doesn't like.
Why, or example, isn't it judicial activism when the federal counts invoke
the judge-made absention doctrine to refuse to hear a case within their
jurisdiction? Conservatives don't mind that because they don't want the
federal courts to hear certain sorts of cases, so such "activism" is
"restraint."
--Justin Schwartz, OSU Law, 3L
Kenneth Hamilton (kenw...@hotmail.com) wrote:
: Is judicial activism not a term to describe a ruling on the basis of
: one's own personal and subjective philosophy, rather than on the basis
: of the law, civil or otherwise? Do not all of the facts in a case
: contribute to some extent how a case should be ruled on, rather than the
: violation of one individual common or civil law (e.g., nonfulfillment of
: contract)? While rulings on damages are not identical to rulings on
: liability, should not a judge have discretion with respect to each?
: --
: Kenneth
: San Diego, California
: Law Devil wrote:
: > If you are in favor of eliminating mandatory minimum sentences and
: > replacing itwith judicial activism under the guise of "common law",
: > please remember thatwhen it comes to sentencing judicial activists
: > fall on both sides of the spectrum.For every bleeding heart judge on
we...@ezo.net
On Sat, 28 Mar 1998 23:24:34 -0500, mspam <ma...@spamspam.net> wrote:
>we...@ezo.net wrote:
>>
>
>I know of someone who, having purchased an old state trooper vehichle,
>was ticketed for "not havinghis car properly painted" - though no such
>statute exists.
>
>The actual statute requires that the vehicle be "altered".
>
>In his case, the state had altered the vehicle by removing the lights
>and emblems. They also gave his a letter stating that it would be highly
>unlikely that a person would mistake the car for a trooper car since the
>car was painted in the old colors which had since been changed for
>several years.
>
>The local hanging judge found him guilty.
>
>On appeal to the Supreme Court the judge upheld the lower court saying
>only that " if you can aford a house, you can aford to pay a trafic
>ticket".
>
>No what does owning a house have to do the question before the court ?
>Besides which, the man didn't own a house!
>
>He had been a a public opponent of property (shelter) taxes, and thereby
>I believe the jusdge assumed he owned a house and was punishing him
>based on his political views rather than the law.
Well I just do not believe that, and here you have a chance to prove
yourself. If there is indeed such a case and you have told us you know
it to be true, and it was upheld by a state, or the US Supreme Court,
then it is reported somewhere. If you would be so kind as to give me
the citation, e.g "State-v-Smith 19 OS 3d 378 (1977)" I would like
to look this up, and see in which states a police officer can make up
offenses as he goes along. I have access to all state court reporters
back to the dawn of time, so it would be an easy matter.
Thanks in advance!
Justin Schwartz
It would be unconstitutional to sentence someone for a crime which was not
specified as such in an otherwise valid statute. In addition, the statute,
to be constitutional, would have to be clear. Vagueness is a fatal
objection to a law. Your teacher doesn't know what he's talking about.
I do not believe that Kevorkian has actually been convicted of anything.
He has been tried and acquitted several times. I don't know the nature of
the charges. If suicide is a crime in Michigan, one possible charge would
be complicity in suicide. Or reckless endangerment or conspiracy to commit
great bodily harm, etc. There are lots of possible perfectly legitimate
charged that might be preferred.
--Justin Schwartz, OSU Law, 3L
Garry W (gne...@ithaca.com) wrote:
: x...@z.se (Per) wrote:
: >One of our teachers related his experiences of law in the US. He told
: >us that there is no "principle of legality" in many states, ie people
: >can be sentenced for a crime even though there is no law which gives
: >an explicit description of that crime. At this point, it was a marvel
: >to see a group of law students speechless and utterly confounded. One
: >girl simply refused to believe these stories.
: One story is of Dr. Kevorkian and assisted suicide. If I remember it right
: the Michigan Supreme Court has decided that in Michigan assisting a suicide
: is a prosecutable common-law (unwritten) crime.
: Does anyone know if that decision stood up? There would certainly be some
: constitutional due-process implications.
: Does anyone know of any *other* story, of any other modern-day "common law"
: criminal case in the U.S.? Does it really still happen?
: just curious
: Garry
h
Actually the guy I'm speaking happens to be sitting here as I read this.
He says that he filed his appeal (from the local justice court) to the
NY state supreme court, with applicatiuon for poor person status
He says the state supreme court judge sent him back a notice simply
denyingthe appeal and he doesn't now recall whether the notice mentioned
him owning a house or wheather the judge brought up the matter later
when he went to the see the judges to inquire about the reasons for the
appeal's denial.
This person later filed a Federal civil action against the supreme
court judge and the police office in which the federal court granted the
judge judical immunity and found that 'the police can interfer with your
rights as long as they don't prohibit you from exercising them'.
It happened that he same police officer had two other run ins with this
person. One where the officer challenged this person's right to be in
the town hall to look at property tax records; and another toccurance
when the officer told him to leave the scene of a veterans day parade
where he was displaying an inverted flag to sysmbolize the distress of
verteran's (he isa disabled vet) under the ploicies of the VA
The guy says hell try to dig up the papers and, if he does, I'll be
happy to email them to you or put them on a web page.
maspm
> >I know of someone who, having purchased an old state trooper vehichle,
> >was ticketed for "not havinghis car properly painted" - though no such
> >statute exists.
> >
> >The actual statute requires that the vehicle be "altered".
> >
> >In his case, the state had altered the vehicle by removing the lights
> >and emblems. They also gave his a letter stating that it would be highly
> >unlikely that a person would mistake the car for a trooper car since the
> >car was painted in the old colors which had since been changed for
> >several years.
> >On appeal to the Supreme Court the judge upheld the lower court saying
> >only that " if you can aford a house, you can aford to pay a trafic
> >ticket".
> >Now what does owning a house have to do the question before the court ?
> >Besides which, the man didn't own a house!
> Well I just do not believe that, and here you have a chance to prove
> yourself. {SNIP}
----------------------
............ irrespective of the 'paint' matter, perhaps more worthy of
note is the Federal court decision that followed.
....turns out that, subsequent to being convicted in traffic court, and
having his license suspended for failure to pay the fine, the defendant
sought relief in the supreme court by seeking an order to show cause
requesting a stay of the suspension of his license and said fine.
The proceedure followed by the defendant may have been somewhat
questionable, but the supreme court justice who received the papers
appeared to have accepted some jurisdiction in the matter.
The supreme court justice utimately denied the defendant's requst for a
special proceeding hearing on grounds that (paraphrasisng the court's
writting) ownership of a car (no matter how valueless) and the ability
to pay the licensing fee presumes some ability to pay the fine. The
justice further wrote that the traffic court judge informed him, by
phone conversation, that the defendant owned a home.
However, the defendant did not own a home and the car in question was so
valueless that it was junked in the interim of the proceedings. In
defense of the SC justice, the defendant's pro se papers never really
explained the circumstances of the lower court case.
Anyway, in the Federal case which followed, the court wrote, with
respect to the defendant's claims of harrasment, intimidation and
infringement of rights by the police office who:
1) issued the ticket for not having the car re-painted and who;
2)allegedly challenged the defendant for holding an inverted flag as
symbol of the distress of veterans at the hands of the VA and who;
3) allegedly challenged the defendent for trying to inspect the public
property tax records of the town supervisor;
- that the plaintiff's claims were dismissed because while the police
offcier may have interfered with the plaintiff's exercise of his rights,
the officer did not ultimately prohibit the exercise of said rights'.
Per
On 29 Mar 1998 12:50:21 -0500, jsch...@freenet.columbus.oh.us (Justin
Schwartz) wrote:
>A Swedish law student asks about what he calls "rule skepticism," which he
>misleadingly attributes to Holmes. On this viewm, in its most extreme
>form, there are no legal rules, because any two cases can be
>distinguished, and the law is a matter of what the judge or jury had for
>breakfast.
So called "breakfast jurisprudence", a favourite object of ridicule
for European legal scholars.
> Judge Jerome Frank of the 2d Circuit did actually hold
>something like this. Versions of it are popular with the Critical Legal
>Studies scholars, all law professors.
I think I should add a comment here. In the US, as I have understood,
many university professors and researchers are left-minded people.
This seems to be due to the fact that the political left (properly so
called) is very weak in the US. Therefore the only institutions to
provide left people with a forum for spreading their views are the
universities.
Back here in Sweden and in Europe, the political left is much
stronger. All Western European states except Germany has Social
Democratic governments, and Germany is expected to follow in the
elections this autumn. (Provided that the SDP candidate, Gerhard
Schröder, can keep his support up.)
The European left is thus able to participate in the political life
and leaves the universities to other forces. At my Faculty of Law,
certainly 90% of the professors are conservatives.
The Critical Legal Studies has won very few scholars here in Sweden. A
reason may be that the overwhelming majority of the Swedish laws in
force (some 95%) was enacted during Social Democratic rule. To dismiss
the legal system as merely the product of big time capitalism may, in
this context, seem rather bizarre.
> It was not maintained by Holmes,
>certainly, who thought that the law often gave determinate answers. His
>great book The Common Law explains in detail how the CL arrived at some of
>the answers. Certainly rule skepticism is not a predomonant view among
>judges, although many lawyers in practice maintain it.
This is elucidating. Obviously my textbooks are rather careless about
which views they attribute to OW Holmes. One of my books, Kelly, J.M.,
A Short History of Western Legal Theory, Oxford 1992, pp 366-7, does
not make a distinction between the views of OW Holmes and the views of
Jerome Frank.
>If the view is correct, it would apply to a civil law as well as a common
>law system. It certainly would apply to the many codes (commercial code,
>bankruptcky code, criminal code, etc.) which we have in America. Thea
>rgument would be that any rulke can be be intrerpreted in many ways and
>any interpretation can be applied or not to any case with a little
>ingenuity deoending on how you want to result to come out. I don't believe
>this is true in general, but if it is true, and to the extent that it is,
>the difference between CL and civil law is no difference at all.
OK, let's summarize:
1) "Rule skepticism" is not dominant among lawyers in Common Law
countries.
2) The current American judicial system is, to a large extent,
rule-based. Therefore it is not an all-out case-based common law
system. There are in other words grounds for asserting a convergent
trend between common law and civil law legal reasoning.
Does this seem plausible?
>--Justin Schwartz, OSU Law, 3L
Thank you, Justin, for your comprehensive answer. It has been a great
help to me.
Per Andersson
jur stud, Stockholms Universitet.
we...@ezo.net
On Sun, 29 Mar 1998 17:47:24 -0500, h <iwa...@hotmail.com> wrote:
Well i don't need that, you have answered my question, by failing to
respond. As opposed to being cited for a conjured up offense, i.e
failure to paint a car as you state. I would put money on that fellow
was being charged under a statute/ordinance which prohibits wearing
police uniforms or operating vehicles which bear the colors and
markings of law enforcement units. We have such a statute and by golly
you do too, Based on a sound public policy of reducing the risk of
persons falsely holding themselves out as police and causing a mess.
Your pal was charged with violating it, convicted of it after trial,
or pleaded to it without a trial. On appeal or request for de-novo
review he either raised no meritorious error, or failed to properly
perfect his appeal. These are the hallmarks of the pro-se
litigant."Hey this law sucks" or "I don't like it" are not grounds for
appeal.
As to the lady who is writing me the private hate mail, no i am not a
young one, i am an old one, the complete state reports and statutes of
all 50 states are down in the law library, and I wander by there at
least weekly. There are very few "private" proceedings, everything
that goes on in those courts a public record, you and I have a right
to go down and look it up. In my state every decision down to minor
disciplinary proceedings and whether or not the Court will even hear a
the case come out weekly from the Supreme Court, available to anyone.
I believe that if you looked into it you would find that NY is
different in that what they call a Supreme Court, is not, in the sense
of what other states call a supreme court. So there is most likely not
a "reported" decision of a trial court refusing to review de novo a
referee or magistrate's decision, but there is a decision in the file.
It happens all the time, the litigant gets a copy of the decision, and
as it raises no new issues it is not reported.
Get the fellow's name and address, from his posting buddy, and go down
to the Court house having jurisdiction, or simply write them a letter
or call, and you will find and can purchase a file of the ticket and
disposition record, here and in many others courts there are also
audio tapes which can be transcribed if you wish to pay.
All decisions of courts of appeal, are not "reported" as the reporters
are private companies and they make a decision as to whether or not
the case is of interest as to sell to their subscribers. If not they
don't report it, however that does not mean the record and decision is
not in the public files at the clerk of court's office. Please check
up on this, and broaden your horizons.
Daniel Myers
fyi, this discussion thread is on several newsgroups - misc.legal,
alt.lawyers, alt.philosophy.law, and us.legal.
On 30 Mar 1998, Clara pegg wrote:
> In this day of covert government operations in the executive and
> legislative branches one need not be surprised that the judiciary is learning
> the typical dirty tricks against us sheeple. You need only broaden your
> reading a little to understand the secrecy that conceals appellate decisions.
> Nader's latest book has a collection of alarming cases in which the courts are
> hiding their decisions from inspection with such neat devices as vacature,
> depublication, and other cunning affronts to stare decisis and the public's
> right to know. "All comfortable and compact," as the fellow said who cut off
> his son's head to cure him of squinting. Yet it is true.
....
> It is not entirely a new technique of a shadowy government. Nathan
> Willner spent almost thirty years trying to get the U. S. Supreme Court to hear
> his procedural due process claim that the Supreme Court of New York and its
> partner in incest, the State Bar, was stonewalling his candidacy to become a
> member of the New York bar.
Right on. Dirty tricks by court personnel facilitates one-sided court
action and inaction against disfavored people, by preventing them from
having a timely day in court. Initial privatization of the court system
is done through academic credentialing and licensing, which creates
private, special interest groups. The courts themselves are mere front
organizations for these interest groups.
One common crime committed in California by court personnel is felony
justice obstruction, 4200/4201 P.C. That's when a clerk sends the
paperwork back to the litigant, or refuses to file it. When that's done
during an important filing, such as a novel argument, it can disrupt an
entire litigation. Petty little court rules administered by petty little
rule-fascists are commonly used to harass poor people out of the court
system. If such a case ever goes before a judge, that judge will be
dealing with one angry customer, who is actually a felony victim of his
court. And this doesn't speak for the frauds directly committed by the
judges themselves, unless the lower court personnel are directed by them
to commit the crime.
How many strikes of felony justice obstruction does it take to get rid of
an unwanted litigant?
> So you say you have access to the reporter system from the dawn of
> time. What you have reminds me of the skimpy bathing suits you see on
> the Florida coast. What is revealed is interesting, but what is
> concealed is fundamental. >Clara Pegg<
>
Or as Jon Beaver said in the paralegal thread recently, "You don't know
what you don't know".
dhm
see
http://www.best.com/~dhm/commentaries/insurance-fraud.html
which was sent to the senate judiciary committee
maspm
Daniel Myers wrote:
>
> fyi, this discussion thread is on several newsgroups - misc.legal,
> alt.lawyers, alt.philosophy.law, and us.legal.
>
> On 30 Mar 1998, Clara pegg wrote:
>
> > In this day of covert government operations in the executive and
> > legislative branches one need not be surprised that the judiciary is learning
> > the typical dirty tricks against us sheeple. You need only broaden your
> > reading a little to understand the secrecy that conceals appellate decisions.
> > Nader's latest book has a collection of alarming cases in which the courts are
> > hiding their decisions from inspection with such neat devices as vacature,
> > depublication, and other cunning affronts to stare decisis and the public's
>
> ....
I had a case in which the court ruled so contrary to law and CPLR that
my attorney offered not to take any fee. And this was after years of
work on all appealate levels.
And it is amagizing how slanted published descriptions of cases can as
compared with the original and essential facts. I made the effort to
actually talk to some litigants whose cases were cited against me, and
their real story was often much different from the one told (or omitted)
by the court publication or decision.
maspm
we...@ezo.net wrote:
>
> On Sun, 29 Mar 1998 17:47:24 -0500, h <iwa...@hotmail.com> wrote:
>
> Well i don't need that, you have answered my question, by failing to
> respond. As opposed to being cited for a conjured up offense, i.e
> failure to paint a car as you state. I would put money on that fellow
> was being charged under a statute/ordinance which prohibits wearing
> police uniforms or operating vehicles which bear the colors and
...except those colors were no longer used by the state police and in
fact hadn't been used in years. Plus, he didn't paint the car those
colors. The state did, and they sold it to him stating in writing that
it was sufficiently altered by having had the police siriens. lights and
emblems removed.
Our current trooper colors are solid blue. So is every similar blue
color car in violation?
>On appeal or request for de-novo
> review he either raised no meritorious error, or failed to properly
> perfect his appeal. These are the hallmarks of the pro-se
> litigant."Hey this law sucks" or "I don't like it" are not grounds for
> appeal.
Granted.
But having no ability to aford an attorney, what choice did the
defendant have?
Justin Schwartz
Per (x...@z.se) wrote:
: On 29 Mar 1998 12:50:21 -0500, jsch...@freenet.columbus.oh.us (Justin
: Schwartz) wrote:
: >A Swedish law student asks about what he calls "rule skepticism," which he
: >misleadingly attributes to Holmes. On this viewm, in its most extreme
: >form, there are no legal rules, because any two cases can be
: >distinguished, and the law is a matter of what the judge or jury had for
: >breakfast.
: So called "breakfast jurisprudence", a favourite object of ridicule
: for European legal scholars.
Although I think the view is wrong, I should remark that some version of
it is held by all practicing lawyers I have ever met or worked with. This
may be a function of the uncertainty of ligitation. I have worked on
cases, though, which tempted me to the view. I worked on an environmental
law racial discrimination case concerning the siting of toxic wasdte
burning plants in minority communities where the judge got the law of
disparate impact discrimination so stupidly wrong that one just has to
suppose he was determined to find against us on that issue no matter what.
(DI discrimination is discriminatiion without intent, just doing something
that has a racially disparate impact.)
: > Judge Jerome Frank of the 2d Circuit did actually hold
: >something like this. Versions of it are popular with the Critical Legal
: >Studies scholars, all law professors.
: I think I should add a comment here. In the US, as I have understood,
: many university professors and researchers are left-minded people.
: This seems to be due to the fact that the political left (properly so
: called) is very weak in the US. Therefore the only institutions to
: provide left people with a forum for spreading their views are the
: universities.
Certainly the left is today strongest in the universities in America. Most
law professors, like most professors, are welfare state liberals. There
are a good many very conservative law professors. Real radicals are quite
rare, The Crits--the Critical Legal Studies movement--is a sprinkling at
elite law schools. At my (very good but not elite) law schoo, we have no
crits and exactly one Marxist. But we have a lot of Law & Economics types.
L&E is a right wing movement that attempts to apply the tools of
neoclassical economics to law. I am an odd bird, because I am a very left
wing L&E type.
: The Critical Legal Studies has won very few scholars here in Sweden. A
: reason may be that the overwhelming majority of the Swedish laws in
: force (some 95%) was enacted during Social Democratic rule. To dismiss
: the legal system as merely the product of big time capitalism may, in
: this context, seem rather bizarre.
Actually the CLS people do not claim this. They are postmodernists rather
than Marxists and twend not to talk in terms of class.
: > It was not maintained by Holmes,
: >certainly, who thought that the law often gave determinate answers. His
: >great book The Common Law explains in detail how the CL arrived at some of
: >the answers. Certainly rule skepticism is not a predomonant view among
: >judges, although many lawyers in practice maintain it.
: This is elucidating. Obviously my textbooks are rather careless about
: which views they attribute to OW Holmes. One of my books, Kelly, J.M.,
: A Short History of Western Legal Theory, Oxford 1992, pp 366-7, does
: not make a distinction between the views of OW Holmes and the views of
: Jerome Frank.
Well, Kelly's sloppy. Another example. Holmes was "the Great Dissenter."
He was on the Supreme Court at a time when the Court was making a lot of
pro-business decisions on constitutional grounds. Holmes opposed this
because he thought that the constitutional did not, as he put it, enact
Mr,. Herbert Spencer's Social Statics, a classic statement of
laissez-faire libertarianism. Holnes argued from what he thought the law
was, not, quite explicutly from what he thought good policy was. He
thought the law was that the Congress and the state legislatures and not
the courts got to say what good policy was.
: OK, let's summarize:
: 1) "Rule skepticism" is not dominant among lawyers in Common Law
: countries.
No, it's not domiannt among _judges_. It probably is dominant among
_lawyers._
: 2) The current American judicial system is, to a large extent,
: rule-based. Therefore it is not an all-out case-based common law
: system.
Doesn't follow. Case-based law sets forth rules, evolved in cases. Thus
one talks about the rule in Hadley v. Baxandale, etc. A good part of
especially first year legal education consists in getting students to
state the rule in the cases that are assigned. There is also a lot of code
law in at least the US. I can't speak for other common law countries.
There are in other words grounds for asserting a convergent
: trend between common law and civil law legal reasoning.
I don't know enough about civil law to say.
: Does this seem plausible?
: >--Justin Schwartz, OSU Law, 3L
: Thank you, Justin, for your comprehensive answer. It has been a great
: help to me.
You are welcome.
--jks
Law Devil
Justin Schwartz wrote in message
<6fm0vd$c...@login.freenet.columbus.oh.us>...
>It would be unconstitutional to sentence someone for a crime which was not
>specified as such in an otherwise valid statute. In addition, the statute,
>to be constitutional, would have to be clear. Vagueness is a fatal
>objection to a law.
Although many crimes are now codified in statutes enacted by state
legislatures,
these criminal codes are not exclusive criminal remedies in many states.
As a practical matter, defendants are usually charged and prosecuted for
crimes
that have been codified.
However, there are instances where a particular act is perceived as
criminal, but
does not meet the requisite statutory definition of a crime.
Prosecutions in such cases can occur for common law crimes.
The requisite elements for these crimes have been thoroughly established
through centuries of judicial opinions.
It is important to note that most criminal codes are derived from common
law crimes. The legislature has simply adopted the rules of law applied by
the
courts in prior decisions. Prosecution for a common law crime is merely
a means to address a crime that the legislature hasn't yet addressed with a
statute.
Per
On 30 Mar 1998 20:19:52 -0500, jsch...@freenet.columbus.oh.us (Justin
Schwartz) wrote:
>I worked on an environmental
>law racial discrimination case concerning the siting of toxic wasdte
>burning plants in minority communities where the judge got the law of
>disparate impact discrimination so stupidly wrong that one just has to
>suppose he was determined to find against us on that issue no matter what.
>(DI discrimination is discriminatiion without intent, just doing something
>that has a racially disparate impact.)
How most lawyer-friendly laws! We should have those here too!
>At my (very good but not elite) law schoo, we have no
>crits and exactly one Marxist.
The Marxists in Europe sort of died out in '89, not surprisingly.
Actually it was a long time ago I heard a European academic call
him/herself a Marxist.
>: OK, let's summarize:
>
>: 1) "Rule skepticism" is not dominant among lawyers in Common Law
>: countries.
>
>No, it's not domiannt among _judges_. It probably is dominant among
>_lawyers._
>
>
>: 2) The current American judicial system is, to a large extent,
>: rule-based. Therefore it is not an all-out case-based common law
>: system.
>
>Doesn't follow. Case-based law sets forth rules, evolved in cases. Thus
>one talks about the rule in Hadley v. Baxandale, etc. A good part of
>especially first year legal education consists in getting students to
>state the rule in the cases that are assigned. There is also a lot of code
>law in at least the US. I can't speak for other common law countries.
Even we backward civil law people have heard about Hadley v.
Baxendale! (This principle is thought to form a part of the CISG
International Purchase Code, which nowadays we use here too.) But
isn't the procedure you describe here a marked characteristic of
common law systems? Read the cases first, then identify the rules. In
civil law countries, students are taught first to get a systematic
overview of the rule complex in question (e.g. law of real property),
then study cases which elucidate some of the obscure details in the
legislation.
My point is that even though the rules in common law and civil law
systems may seem rather similar, the lawyers who apply them use
totally different modes of legal reasoning.
Mike Siesel
7)
Daniel Myers wrote:
> I believe a death-blow case against the so-called "Lochner era" which had
> rampantly struck down a lot of state laws was Nebbia vs. blah (1934).
>
> dhm
> homeless
I believe Nebbia was about price controls, and the Lochner/Adkins et nauseosus
philosophy remained until 1937 when a whole string of cases came down in favor of
New Deal social legislation. Here's the quote that seems to nail Lochner:
In each case the violation alleged by those attacking minimum wage regulation for
women is deprivation of freedom of contract. What is this freedom? The Constitution
does not speak of freedom of contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of law. West Coast Hotel Co. v. Parrish,
300 U.S. 379, at 391 (1937).
ms
Garry W
"Law Devil" <le...@postoffice.ptd.net> wrote:
>Prosecutions in such cases can occur for common law crimes.
>The requisite elements for these crimes have been thoroughly established
>through centuries of judicial opinions.
Do you have any current examples? I'm curious how it works in practice.
garry
Justin Schwartz
server.swip.net>:
Distribution:
Per (x...@z.se) wrote:
: On 30 Mar 1998 20:19:52 -0500, jsch...@freenet.columbus.oh.us (Justin
: Schwartz) wrote:
: >I worked on an environmental
: >law racial discrimination case concerning the siting of toxic wasdte
: >burning plants in minority communities where the judge got the law of
: >disparate impact discrimination so stupidly wrong that one just has to
: >suppose he was determined to find against us on that issue no matter what.
: >(DI discrimination is discriminatiion without intent, just doing something
: >that has a racially disparate impact.)
: How most lawyer-friendly laws! We should have those here too!
You mean disparate impact discrimination? Btw, the DI theory was a
judicial interpretation of the 1964 Civil Rights Act. I think of it as
plaintiff friendlyrather than lawyer friendly. The judge, as I say,
dropped the ball in that case in a spectaculat manner.
: >At my (very good but not elite) law schoo, we have no
: >crits and exactly one Marxist.
: The Marxists in Europe sort of died out in '89, not surprisingly.
: Actually it was a long time ago I heard a European academic call
: him/herself a Marxist.
I know a good many European academics who still call themselves Marxits.
But you suggest that Swedish academia is sort of right wing, which
explains, e.g. Anders Aslund, a right winger who has written on the USSR
and Russia. It's odd: in other countries in Europe with strong labor
movements the left has been strong in academia as well. In Ameriac it is
almost nonexistent in the labor movement, which is weak, and stronger in
academia than elsewhere, which isn't saying much. It was much stronger ina
cacemia when it was stronger in society, in the late 60s and 70s.
: >: 2) The current American judicial system is, to a large extent,
: >: rule-based. Therefore it is not an all-out case-based common law
: >: system.
: >
: >Doesn't follow. Case-based law sets forth rules, evolved in cases. Thus
: >one talks about the rule in Hadley v. Baxandale, etc. A good part of
: >especially first year legal education consists in getting students to
: >state the rule in the cases that are assigned. There is also a lot of code
: >law in at least the US. I can't speak for other common law countries.
: Even we backward civil law people have heard about Hadley v.
: Baxendale! (This principle is thought to form a part of the CISG
: International Purchase Code, which nowadays we use here too.) But
: isn't the procedure you describe here a marked characteristic of
: common law systems? Read the cases first, then identify the rules.
Right, except with the codes. In my Uniform Commercial Code classes we
didn't even bother to read the cases, just the code and the comments. That
was extreme. In other code based classes--civil procedure, evidence,
criminal law, etc., one also raed the cases. In common law areas--torts,
property, contracts, the caselaw is the law. You can look up semi-codified
"restatements" of the rules which are not, technically, law, but from
which you can learn the rules in the cases.
In
: civil law countries, students are taught first to get a systematic
: overview of the rule complex in question (e.g. law of real property),
: then study cases which elucidate some of the obscure details in the
: legislation.
: My point is that even though the rules in common law and civil law
: systems may seem rather similar, the lawyers who apply them use
: totally different modes of legal reasoning.
No doubt. But the Anglo-American system is a rule-based system.
--jks
Law Devil
>Do you have any current examples? I'm curious how it works in practice.
It doesn't tend to work very well because most crimes have been codified.
When the prosecution
has to rely upon the common law rather than an express statute, it is
usually as a last resort to deal with
something unusual.
The best example is Dr. Kevorkian. He was tried and acquitted three times
for violating Michigan's
statute prohibiting assisted suicide. Bypassing the arguments that this
statute was unconstitutional, the Michigan Supreme Court found that assisted
suicide was also a crime under the state's common law.
Dr. Kevorkian was tried for this common law crime in two assisted suicides.
He was acquitted again.
=:-> Law Devil <-:=
Law Devil
Justin Schwartz wrote in message
<6fm1s3$f...@login.freenet.columbus.oh.us>...
>Judicial activism is a term used to describe a decision one doesn't like.
>Why, or example, isn't it judicial activism when the federal counts invoke
>the judge-made absention doctrine to refuse to hear a case within their
>jurisdiction? Conservatives don't mind that because they don't want the
>federal courts to hear certain sorts of cases, so such "activism" is
>"restraint."
>
>--Justin Schwartz, OSU Law, 3L
Far be it from me to contradict a 3L, but judicial activism is neither
conservative
nor liberal. Judicial activism occurs when a judge places his/her personal
view of what the law should be in the place of what the law actually states.
As to jurisdiction, if a court doesn't have jurisdiction it would be
judicial activism
to exercise it. Refusal to exercise inappropriate jurisdiction is called
following the law.
=:-> Law Devil <-:=
le...@postoffice.ptd.net
Wishes he were a 3L again, but has J.D. and a LL.M. (neither of which are
from OSU).
Justin Schwartz
m1s3$f...@login.freenet.columbus.oh.us> <OKdU.1087$zT6.4...@nnrp1.ptd.net>:
Distribution:
I didn't say judicial activism was conservative or liberal. I said it was
what one called judicial behavior of which one disapproves. Personally I
think the expression is cant.
: Far be it from me to contradict a 3L, but judicial activism is neither
: conservative
: nor liberal. Judicial activism occurs when a judge places his/her personal
: view of what the law should be in the place of what the law actually states.
: As to jurisdiction, if a court doesn't have jurisdiction it would be
: judicial activism
: to exercise it. Refusal to exercise inappropriate jurisdiction is called
: following the law.
Sure, but my point about abstention is that this is a judge-made, i.e., an
activist notion. There's nothing in the Constitution that says that
federal judges can refuse to hear a case over which the plain text of the
Constitution gives them jurisdiction, i.e., which involve a substantial
federal question in the complaint well pleaded or are diversity cases that
satisfy the jurisdictional amount. I actually don't mind abstention or
judge-made law. I was just pointing out that what you call activism
depends on your point of view. It's activism in a sense to invoke
abstention, but it's generally not perceived as such.
: =:-> Law Devil <-:=
: le...@postoffice.ptd.net
: Wishes he were a 3L again, but has J.D. and a LL.M. (neither of which are
: from OSU).
Well, we can't all be so fortunate as to be from OSU.
--jks
Daniel Myers
On 29 Mar 1998, Justin Schwartz wrote:
> It would be unconstitutional to sentence someone for a crime which was not
> specified as such in an otherwise valid statute. In addition, the statute,
> to be constitutional, would have to be clear. Vagueness is a fatal
> objection to a law. Your teacher doesn't know what he's talking about.
>
>
> Garry W (gne...@ithaca.com) wrote:
> : x...@z.se (Per) wrote:
> : >One of our teachers related his experiences of law in the US. He told
> : >us that there is no "principle of legality" in many states, ie people
> : >can be sentenced for a crime even though there is no law which gives
> : >an explicit description of that crime. At this point, it was a marvel
> : >to see a group of law students speechless and utterly confounded. One
> : >girl simply refused to believe these stories.
>
>
> : Does anyone know of any *other* story, of any other modern-day "common law"
> : criminal case in the U.S.? Does it really still happen?
>
> : just curious
>
> : Garry
>
>
Try Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140
(1986) if you're curious. I'm not.
dhm
Per
On 31 Mar 1998 13:30:14 -0500, jsch...@freenet.columbus.oh.us (Justin
Schwartz) wrote:
>You mean disparate impact discrimination? Btw, the DI theory was a
>judicial interpretation of the 1964 Civil Rights Act. I think of it as
>plaintiff friendlyrather than lawyer friendly. The judge, as I say,
>dropped the ball in that case in a spectaculat manner.
The law on discrimination is rather under-developed back here. That
doesn't mean that we haven't got racial discrimination, far from it.
If you have black hair and brown eyes in N Europe nowadays, you're in
serious trouble. We should need some civil rights lawyers here too...
Most of the people at law schools want to go into commercial law or
European administration, which means that there are not many good
lawyers left to deal with civil rights.
>I know a good many European academics who still call themselves Marxits.
Might be in France. Scandinavian Social Democrats have always been
ferociously anti-Marxist, which means that the few Swedish Marxists
have had a rough time.
>But you suggest that Swedish academia is sort of right wing, which
>explains, e.g. Anders Aslund, a right winger who has written on the USSR
>and Russia. It's odd: in other countries in Europe with strong labor
>movements the left has been strong in academia as well.
Basically yes, but that was in the aftermath of the famous student
revolts in 1968. A good many years after that almost all universities
in Europe were left-wing. This changed, it seems, in the 80's and by
now, the left wing (in Sweden anyway) has lost much of its influence.
"The times they are a-changing!"
You have heard of mr Åslund then! Actually, I saw some of his pals
some time ago. They had had lunch at the Law Students' Association's
restaurant. Åslund was an advisor of president Yeltsin until he got
sacked. If you are not into Russian history I can inform you that the
first known ruler of (embryonic) Russia was a Swede, Rurik. In the 9th
century AD, Slavic tribes sent an embassy to Rurik with the simple
message: "Come and rule us!" Actually the name Russia is thought to
derive from Rurik's home ROS-lagen, a region in Sweden north of
Stockholm (where I live). Thus we like to think of Åslund as a
modern-day Rurik, bringing peace and order to the poor Russians.
Per
> Judicial activism occurs when a judge places his/her personal
>view of what the law should be in the place of what the law actually states.
>As to jurisdiction, if a court doesn't have jurisdiction it would be
>judicial activism
>to exercise it. Refusal to exercise inappropriate jurisdiction is called
>following the law.
European courts (outside England) always listen attentively to the
legislator's wishes. There is one famous exception though, the
European Court of Justice (ECJ) in Luxemburg. During a period of about
40 years, the ECJ have been making laws which apply all over Western
Europe without anyone protesting! That's what I call legal activism.
we...@ezo.net
Well I originally took issue with your assertion that your friend was
been cited for "failing to paint his car", i.e. it was some offense
simply conjured up by a police officer along the lines of "hair too
long", "general ugliness", or "rampant stupidity". Now in fact you
admit that he was charged under a statute or ordinance, amazingly
enough it always seems to be that way. So he was charged and was
aware of the offense, and elected to try it or plead to it. He was
convicted of it on a plea or trial, and "appealed" that decision from
an inferior court or officer, what would be here a referee or
magistrate to a judge of a court of general jurisdiction, which I
guess in your state is a "supreme court" though it is not a court of
last or final appeal as in the other states.
On "appeal" the judge found there was nothing raised rising to error,
just a general dissatisfaction, and overruled or found without legal
merit your buddy's dissatisfaction with the lower ruling. This only
happens about 1000 times a day across the land. The important issue is
that again, be it a civil or criminal matter, great lengths are gone
to by the Court to insure that the party has 1) notice of the claim or
charge against him and 2) an opportunity to appear and defend.
Lastly some property officer dumping old cars does not have the legal
right to waive your state's statutes anymore than a police officer has
a right to commit murder or rape. "some guy told me this was OK" is
rarely a defense whether that "guy" is a cop a lawyer or a judge. it
is up to the trier of fact to determine whether the activity came
within the elements of the charged offense based on the facts as
presented and the law as argued. And no I do not want any state's
meager resources for public defenders wasted on little malum
prohibitum misdemeanants who have nothing but $100 to lose.
Garry W
Daniel Myers <d...@best.com> wrote:
>> Garry W (gne...@ithaca.com) wrote:
>> : Does anyone know of any *other* story, of any other modern-day "common law"
>> : criminal case in the U.S.? Does it really still happen?
>
>(1986) if you're curious. I'm not.
That's the Georgia sodomy case. It is indeed mentioned in there "Sodomy was a
criminal offense at common law and was forbidden by the laws of the original
13 States when they ratified the Bill of Rights."
But it goes on to explain that that Georgia common-law crime was superseded
by Georgia statute in 1816. It is that statute that was at issue in the
Bowers case - sodomy has not been a common-law crime in Georgia for 182
years.
It looks rather like the Michigan Supreme Court was working in sort of an
alternate reality when they devised the Kevorkian "common law" criminal
penalty...
garry
Daniel Myers
On Wed, 1 Apr 1998, Garry W wrote:
> Daniel Myers <d...@best.com> wrote:
> >> Garry W (gne...@ithaca.com) wrote:
> >> : Does anyone know of any *other* story, of any other modern-day "common law"
> >> : criminal case in the U.S.? Does it really still happen?
> >
> >Try Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140
> >(1986) if you're curious. I'm not.
>
> That's the Georgia sodomy case. It is indeed mentioned in there "Sodomy was a
> criminal offense at common law and was forbidden by the laws of the original
> 13 States when they ratified the Bill of Rights."
>
> But it goes on to explain that that Georgia common-law crime was superseded
> by Georgia statute in 1816. It is that statute that was at issue in the
> Bowers case - sodomy has not been a common-law crime in Georgia for 182
> years.
>
You're right. I should have read it before I referred to it.
regards,
dhm
Justin Schwartz
Per (x...@z.se) wrote:
: On 31 Mar 1998 13:30:14 -0500, jsch...@freenet.columbus.oh.us (Justin
: Schwartz) wrote:
: The law on discrimination is rather under-developed back here. That
: doesn't mean that we haven't got racial discrimination, far from it.
Yeah, I lived in England for a year. ANd last time I visited Scandanavia,
the neo-Nazis were attacking the Vietnamese in Rostock when I crissed the
Danish-German border. When I arrived in Berlin, thugs were blowing up
tombstines in the Jewish cemetary in Berlin.
: serious trouble. We should need some civil rights lawyers here too...
: Most of the people at law schools want to go into commercial law or
: European administration, which means that there are not many good
: lawyers left to deal with civil rights.
Here too. It's not a lucrative career. I am a member of the National
Lawyers Guild, which along with the NAACP Legal Defense Fund, Inc. (The
Inc, Fund, so called) is one of the premoerassociations of radical, left,
and liberal lawyers that handles civil rights and such like cases.
: >I know a good many European academics who still call themselves Marxits.
: Might be in France. Scandinavian Social Democrats have always been
: ferociously anti-Marxist, which means that the few Swedish Marxists
: have had a rough time.
France, Germany, England, it's a differents tory. Now that I think of it,
the Scandanavians haven't contributed much to the literature on Marxism.
: >But you suggest that Swedish academia is sort of right wing, which
: >explains, e.g. Anders Aslund, a right winger who has written on the USSR
: >and Russia. It's odd: in other countries in Europe with strong labor
: >movements the left has been strong in academia as well.
: Basically yes, but that was in the aftermath of the famous student
: revolts in 1968. A good many years after that almost all universities
: in Europe were left-wing. This changed, it seems, in the 80's and by
: now, the left wing (in Sweden anyway) has lost much of its influence.
: "The times they are a-changing!"
Here too.
: You have heard of mr Åslund then!
Oh, yeah. Read his book on perestroika. I was shocked at how right wing it
was. But I didn't know about the landscape of Swedish academia.
: sacked. If you are not into Russian history I can inform you that the
: first known ruler of (embryonic) Russia was a Swede, Rurik. In the 9th
: century AD, Slavic tribes sent an embassy to Rurik with the simple
: message: "Come and rule us!" Actually the name Russia is thought to
: derive from Rurik's home ROS-lagen, a region in Sweden north of
: Stockholm (where I live). Thus we like to think of Åslund as a
: modern-day Rurik, bringing peace and order to the poor Russians.
When I was in academics I had Sovietology as as sideline in a minor way,
although I don't know Russian. So I knew this. As far as Aslund as a
Rurik, he's not doing the best job of it, is he?
--jks
Daniel Myers
On Wed, 1 Apr 1998, Per wrote:
> On 31 Mar 1998 13:30:14 -0500, jsch...@freenet.columbus.oh.us (Justin
> Schwartz) wrote:
>
>
> If you have black hair and brown eyes in N Europe nowadays, you're in
> serious trouble.
How so?
josée
Practicing law in Quebec forces me to work into both systems: civil law
inherited from France (Quebec used to be New France until the conquest by
England in 1760 and the Treaty of Paris of 1763) and english Common Law
applicable to Public Law. Which means that jurists here have to understand
both systems' approach and reasoning. Unfortunately, many do not.
Under civil law the statutes and regulations are foremost. A jurist reads
them to know the applicable law. The jurisprudence is only a tool in
understanding it and there is no real "stare decisis" applicable to the
jurisprudence because a judge is supposed to be able to read the law from
the statutes and regulation no matter what any other judge may have written
or said before. Of course, precedents still carry an important weight
since a judge should not simply dismiss another judge's thought on the
state of the law.
Under the Common law, jurisprudence is foremost and statutes are always
considered suspect since they are supposedly written to change the existing
law (though this view has been relaxed). The judges and lawyers must
therefore start their analysis from the jurisprudence and then proceed to
analyse the statutes. The rule of "stare decisis" forces them to read
thouroughly the precedents to find out what was really decided, whether it
is "ratio decidendi" or simply "obiter dictum" (which is not "that"
important under civil law).
Unfortunately, since jurists here have to work within both systems they
tend to forget the fundamental differences and mix the rules: they
sometimes are too strict on the application of the precedents in civil law,
while on the other hand, too relaxed on their analysis of the common law
precedents.
y...@z.se> a écrit dans l'article <352096a...@nntpserver.swip.net>...
>
> Even we backward civil law people have heard about Hadley v.
> Baxendale! (This principle is thought to form a part of the CISG
> International Purchase Code, which nowadays we use here too.) But
> isn't the procedure you describe here a marked characteristic of
> common law systems? Read the cases first, then identify the rules. In
Daniel Myers
corrected posting -
On Wed, 1 Apr 1998, Per wrote:
>
>
> If you have black hair and brown eyes in N Europe nowadays, you're in
> serious trouble.
>
I'd like to read Per's own perceptions about this.
dhm
Per
On Thu, 2 Apr 1998 19:21:38 -0800, Daniel Myers <d...@best.com> wrote:
>> If you have black hair and brown eyes in N Europe nowadays, you're in
>> serious trouble.
>>
>
>I'd like to read Per's own perceptions about this.
>
>dhm
Okay. For myself, I have dark blond hair and blue eyes. I can thus not
relate any personal experiences of racial discrimination in Sweden. It
is, however, obvious that people with immigrant origin are
discriminated against in Europe. Especially due to the strained
situation on the labour market immigrants have severe difficulties in
finding a job. (Among some immigrant groups in Sweden, unemployment is
nearly 90%).
Another factor which should not be ignored is the growing political
pressure on immigrants. In most countries there is a more or less
openly racist party. You might have heard of a certain Jean-Marie Le
Pen in France. He wants to expulse all immigrants (ie Arabs) to
liberate jobs for the French (a quite curious idea, since it's the
immigrants who are unemployed!) Exactly by what means he wants to
carry out these deportations has is not entirely clear.
I should remark that the largest group of immigrants in Sweden are
Nordic, especially Finns. These, however, are not to my knowledge
discriminated against.
Daniel Myers
On Fri, 3 Apr 1998, Per wrote:
>
> >> If you have black hair and brown eyes in N Europe nowadays, you're in
> >> serious trouble.
> >>
> >
In America, there is pervasive discrimination along these color lines too.
America seems to have more experience than Europe in absorbing racism into
capitalism, but it seems that blue eyed people generally have an easier
time in life.
There's a lot of anti-immigrant sentiment in California too. It's not
only racial, it's political. I remember many years ago I was observing a
U.S. magistrate's hearing, and about 30 illegal immigrants from Mexico
were chained together in the courtroom. The judge hectored them, "What's
the name of your invasion army?" and "Who's your leader?". One of the
older defendants had a little more self confidence in his defiance, and
told off the judge, "God is my judge, not you".
dhm
http://www.best.com/~dhm/radical.html
scaevola
Per wrote in message <352096a...@nntpserver.swip.net>...
>On 30 Mar 1998 20:19:52 -0500, jsch...@freenet.columbus.oh.us (Justin
>Schwartz) wrote:
>>Doesn't follow. Case-based law sets forth rules, evolved in cases. Thus
>>one talks about the rule in Hadley v. Baxandale, etc. A good part of
>>especially first year legal education consists in getting students to
>>state the rule in the cases that are assigned. There is also a lot of code
>>law in at least the US. I can't speak for other common law countries.
>
>Even we backward civil law people have heard about Hadley v.
>Baxendale! (This principle is thought to form a part of the CISG
>International Purchase Code, which nowadays we use here too.) But
>isn't the procedure you describe here a marked characteristic of
>common law systems? Read the cases first, then identify the rules. In
>civil law countries, students are taught first to get a systematic
>overview of the rule complex in question (e.g. law of real property),
>then study cases which elucidate some of the obscure details in the
>legislation.
>
BTW, I think i remember reading somewhere that the Hadley v. Baxendale rule
wasn't orginal, it was influenced by the civil law.
Per
On Sat, 4 Apr 1998 15:50:06 -0800, Daniel Myers <d...@best.com> wrote:
>In America, there is pervasive discrimination along these color lines too.
>America seems to have more experience than Europe in absorbing racism into
>capitalism, but it seems that blue eyed people generally have an easier
>time in life.
I have a friend who has an Italian father and a Finn-Swedish mother
(ie very blond hair and very blue eyes). Their offspring (my friend)
looks very Italian (brown-eyed) and he has an amazing success with the
girls. Obviously discrimination is something relative. On second
thoughts, I'd rather be Italian too...
Per
Daniel Myers
On Mon, 6 Apr 1998, Per wrote:
>
> I have a friend who has an Italian father and a Finn-Swedish mother
> (ie very blond hair and very blue eyes). Their offspring (my friend)
> looks very Italian (brown-eyed) and he has an amazing success with the
> girls. Obviously discrimination is something relative. On second
> thoughts, I'd rather be Italian too...
>
Maybe that's why, as you said, people with brown eyes and dark hair in N.
Europe are in trouble. :)
Daniel Myers
Per,
Well, I was able to scan a bit of that book by Rumble for a few minutes.
It seemed a bit dated after running into more recent stuff, like Michael
Morris. I presume you've been focusing on Morris yourself. Do you think
he treats Scandanavian law/legal realism adequately?
dhm
Per
Daniel,
I must admit that I've never heard of the work to which you are
referring! It doesn't seem to exist in our law library. I'm using
Textbook of Jurisprudence, McCoubrey/White, 2nd ed, London 1996 and
Kelly, A Short History of Western Legal Theory, Oxford 1992. These
books are used since there are no equivalent texts in Swedish. Both
Kelly and White/McCoubrey are comprehensive and lucidly written though
they focus a little to much on the specific problems of a common law
system. It would perhaps be more suitable to use a French or German
text, but it cannot be required of Swedish law students to know these
languages also. (Some have problems enough with their English.)
Personally, I'm not very qualified to speak on the subject of
Scandinavian Legal Realism (SLR). This theory had an enormous
influence on Swedish lawyers in the years appr 1930-1980, after which
years its importance has faded. The ideas that have superseded SLR
are, broadly speaking, the mainstream analytical positivism of
(especially) HLA Hart and the quasi-naturalist viewpoint of Ronald
Dworkin. The more speculative new American theories such as the
Critical Legal Studies have made very little headway.
The more classical natural law theory advanced by, e.g., John Finnis,
has not been very succesful for the simple fact that everything with a
Catholic stamp is recieved with revulsion in Scandinavia! In recent
years, however, unmistakably Catholic ideas have been promoted mainly
by Jewish scholars (many of which have Polish origin, of course).
It would be interesting to read that book by Morris. Could you give me
the full title?
Per
Daniel Myers
agghh, did it again. Michael Martin, Legal Realism: American and
Scandanavian. 1996. Also wrote, The Legal Philosophy of H.L.A. Hart,
1987.
Professor Emeritus, Boston University. mlma...@bu.edu.
Sorry for my error, Per. This is the type of flying error that happens
easily in a hostile environment, especially when you have a lot of work in
front of you, moving it all from pocket to bag to pocket to bicycle to
lost, and there's always some a-hole who knows you're a homeless person
and comes in to watch you. I had only about a half hour to crunch a lot in
at the library. I jotted down the name from memory, and got his name
wrong when I jotted it down.
dhm