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| 2005/3/10 [Reference/Law/Court, Politics/Domestic/Crime] UID:36615 Activity:high |
3/10 Hey ilyas, take your philosopher kings and blow 'em out your nose
with a rubber hose!
http://www.townhall.com/columnists/thomassowell/ts20050310.shtml
\_ Intelligently written, but horseshit. Imagine a world where
legislation is so thorough as to leave absolutely no gray areas?
The fact that lawyers can exploit this is not a failure of the
way our legal system works, but a failure of the way lawyers work.
No matter how clever a restriction you put into place, you'll
always find some smartass who'll take advantage of it. -John
\_ Then legislators can correct the problem. That's not the role of
a judge.
\_ interpreting the law is exactly the role of the judicial
system. -tom
\_ There is a huge difference btwn interpreting the law
and making it. No one objects to interpretations of
the law, but when judges base their decisions on the
current prevailing views (as Kennedy recently did)
the foundation upon which the law is based becomes
quite unstable.
The whole idea of separation of powers comes into
question if you allow judges to "interpret" the
legislative schemes to fit into their notion of how
the scheme should work (look at the reluctance of
the USSC to allow judges to fashion soln to the
asbestos mess)
WRT to the posted article the comparison of fixed
speed limits to no undue speed is a poor analogy.
In many cases the law needs to be flexible so that
various factual situations can be handled. Things
"undue" and "prudent" are not just arbitrary, they
have specific meanings that judges and lawyers
know and adhere to.
In many ways the flexibility of modern law is a
reaction to the common law writ system which had
specific (but arbitrary) requirements on what a
person must plead, &c. which forced people to
distort their facts to fit into one writ or the
the other.
\_ Nowhere did I say "correct". The law is deliberately
ambiguous in a lot of areas. The EU has a famous statute
governing the curvature of bananas, as well as one about
the positioning of light fixtures--something like 600,000
pages of random shit that their legislators use to try and
regulate things they have no business with, which is what
legislators do given the opportunity. This breeds a culture,
all too pervasive in a lot of countries, that everything not
explicitly permitted is forbidden--innovation and personal
accountability are stifled. I am arguing against the
extremes that the approach taken by Sowell's article would
create implicitly. That said, striking down laws judged to
violate the constitution (created by legislation) is a form
of "correction", no? Would you ban that? -John
\_ In our system a lawyer has a duty to represent the best
interests of his client. If the clients interests means
that he has to be creative in his interpretation, then
it is not really his fault, he is doing what is required
of him. |
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| www.townhall.com/columnists/thomassowell/ts20050310.shtml People who complain about the frivolous lawsuits that have outraged some and ruined others financially need to connect the dots to the present Se nate controversy over the confirmation of federal judges. The attempt to replace activist judges with judges who follow the writte n law affects not only the basic democratic right of the voters to gover n themselves through their elected representatives, but also whether our legal system becomes a danger to ordinary citizens and a bonanza to law yers who turn it into a legalized extortion racket. Once judges start disregarding the written law in favor of their own not ions, ordinary citizens have no way of knowing in advance what decisions to expect from a given situation. We can read the written law but we ca nnot read judges' minds. This means that there is a large and growing gr ay area around our laws. That large gray area is a happy hunting ground for lawyers, who can thre aten individuals, businesses, and even government agencies with frivolou s lawsuits -- and get paid off to settle out of court, because nobody kn ows what is likely to happen in court. Some people blame juries for outrageous verdicts and astronomical awards but many frivolous lawsuits would have been thrown out of court before they even reached a jury -- except that appellate court rulings, all the way up to the Supreme Court, have left the trial judges themselves unce rtain as to what is and is not legal. So frivolous lawsuits often go to the jury, who are even less likely to have a clue and are more likely to be swayed by lawyers' rhetoric. The law as written may draw a sharp line between what is legal and what is illegal, but when that law is "interpreted" by judicial activists, al l kinds of new notions may be added. Certain things may be legal but onl y if they do not create an "undue burden" or if they meet "evolving stan dards." This is called being "nuanced" and it is considered to be deep stuff. Bu t try guessing what the law means with these vague provisos. Imagine what would happen if highway signs, instead of saying "65 MPH" s aid "No Undue Speed" or "Prudent Driving." The lawsuits over traffic law s alone would clog our courts to a standstill. As bad as uncertainty is to people being sued, it can be worth millions of dollars to a slick lawyer who knows how to concoct frivolous lawsuits and extort money for settling out of court. Such lawyers head for place s where there are big bucks -- "deep pockets," as they are called. Among the reasons why this affects ordinary people is that many deep poc kets get their money from a lot of much shallower pockets. Many of these shallower pockets belong to taxpayers who get stuck with the bill when government agencies get sued and pay off the legal sharks to go away. When your insurance company has to buy its way out of a frivolous lawsui t, guess whose premiums go up. When developers who are trying to build h omes or apartment buildings get sued at every turn by environmental extr emists, guess what that does to the rent of apartments and mortgage paym ents for those who buy houses. More than money is lost when judges muddy the waters with their own noti ons. Judicial activists have imposed "due process" rules on schools whic h have made it such a legal ordeal to get rid of disruptive or even viol ent students that it can be virtually impossible to impose the kind of d iscipline needed for learning. Similar judicial attempts to micro-manage other institutions have made i t hard to maintain order in prisons or to keep "street people" from bein g a constant nuisance or danger to ordinary citizens on the streets or c hildren in the parks. Some people try to justify judicial activism by claiming that there have been issues on which the public was wrong and the judges were right. Bu t nothing is easier than finding issues on which any given set of human beings have been wrong -- including judges. There are high stakes for everyone in the upcoming Senate battle over ju dicial nominees who are said to be "out of the mainstream" because they don't support judicial activism. The mainstream of judicial activism is itself the real problem. Applied Economics So much of our national political debate these days revolves around econo mic matters -- taxes, health care, even affirmative action and immigrati on policy -- that it is essential for every informed American to have a working knowledge of economics. Now the renowned conservative economist Thomas Sowell has made it possible for you to grasp quickly and easily t he economic elements of key public policies -- even if economics has alw ays seemed dry and forbidding in the past. Then write a letter to your Members of Congress or your local newspapers, who you can find by entering your ZIP code in the boxes below. Also mak e sure to tell your newspaper editors that they should carry your favori te conservative columnists! NOTE: Columns will not be automatically attached to the emails you send t hrough this tool. |