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Read the rules in the OP before posting, please.In order to ensure that this thread continues to meet TL standards and follows the proper guidelines, we will be enforcing the rules in the OP more strictly. Be sure to give them a re-read to refresh your memory! The vast majority of you are contributing in a healthy way, keep it up! NOTE: When providing a source, explain why you feel it is relevant and what purpose it adds to the discussion if it's not obvious. Also take note that unsubstantiated tweets/posts meant only to rekindle old arguments can result in a mod action. |
On February 12 2015 14:03 Introvert wrote:Show nested quote +On February 12 2015 13:26 IgnE wrote:On February 12 2015 10:52 Introvert wrote:On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff. The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above. Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law. So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do. I agree to an extent, just because the Court declares something for some reason doesn't make it right or rational. But I'm kind of going back to something we've discussed before, which is order. I think the government is most effectively used and constrained when it relies more on following the logical train of what came before. So when you say "We need to call things by what they do" I think we are, because how we get somewhere actually matters, espeically since in our system it can alter the future. [I'm removing this example because I think we'll go off track. It has a lot of holes anyway.] So I agree- just because a Court says it doesn't make it meaningful, but the way a Court (or any lawmaking/lawreading body) goes about deciding something has a real effect down the line. Maybe if we had a different system it wouldn't matter so much, but that's not the case.
The legal pragmatism, or functionalism, that I've been talking about doesn't run into order problems because the entire purpose is to answer the two questions I had in my first post on the topic:
One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?"
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On February 12 2015 14:40 IgnE wrote:Show nested quote +On February 12 2015 14:03 Introvert wrote:On February 12 2015 13:26 IgnE wrote:On February 12 2015 10:52 Introvert wrote:On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff. The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above. Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law. So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do. I agree to an extent, just because the Court declares something for some reason doesn't make it right or rational. But I'm kind of going back to something we've discussed before, which is order. I think the government is most effectively used and constrained when it relies more on following the logical train of what came before. So when you say "We need to call things by what they do" I think we are, because how we get somewhere actually matters, espeically since in our system it can alter the future. [I'm removing this example because I think we'll go off track. It has a lot of holes anyway.] So I agree- just because a Court says it doesn't make it meaningful, but the way a Court (or any lawmaking/lawreading body) goes about deciding something has a real effect down the line. Maybe if we had a different system it wouldn't matter so much, but that's not the case. The legal pragmatism, or functionalism, that I've been talking about doesn't run into order problems because the entire purpose is to answer the two questions I had in my first post on the topic:
One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?"
Right, but you are arguing that the "ought" is the more important part. The thing is, I think the ought is very much tied in with the "how" because "how" provides restraint. It is the stabilizing force. This is a desirable feature in and of itself. There are too many people with too many different ideas of what ought to be, justices included. I don't need them dreaming up new oughts and hows. If we want to change things (like rights), we have other mechanisms. We don't need to go to judges to just make the "right" call.
You simply must spend a lot of time focusing on "how." I guess the simplest way to put it is that you can't entirely separate the two questions, at least without additional qualifiers.
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On February 12 2015 15:07 Introvert wrote:Show nested quote +On February 12 2015 14:40 IgnE wrote:On February 12 2015 14:03 Introvert wrote:On February 12 2015 13:26 IgnE wrote:On February 12 2015 10:52 Introvert wrote:On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff. The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above. Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law. So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do. I agree to an extent, just because the Court declares something for some reason doesn't make it right or rational. But I'm kind of going back to something we've discussed before, which is order. I think the government is most effectively used and constrained when it relies more on following the logical train of what came before. So when you say "We need to call things by what they do" I think we are, because how we get somewhere actually matters, espeically since in our system it can alter the future. [I'm removing this example because I think we'll go off track. It has a lot of holes anyway.] So I agree- just because a Court says it doesn't make it meaningful, but the way a Court (or any lawmaking/lawreading body) goes about deciding something has a real effect down the line. Maybe if we had a different system it wouldn't matter so much, but that's not the case. The legal pragmatism, or functionalism, that I've been talking about doesn't run into order problems because the entire purpose is to answer the two questions I had in my first post on the topic:
One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" Right, but you are arguing that the "ought" is the more important part. The thing is, I think the ought is very much tied in with the "how" because "how" provides restraint. It is the stabilizing force. This is a desirable feature in and of itself. There are too many people with too many different ideas of what ought to be, justices included. I don't need them dreaming up new oughts and hows. If we want to change things (like rights), we have other mechanisms. We don't need to go to judges to just make the "right" call. You simply must spend a lot of time focusing on "how." I guess the simplest way to put it is that you can't entirely separate the two questions, at least without additional qualifiers.
Every single case necessarily has an "ought" because every case is an ethical question. You don't want justices "dreaming up new oughts and hows" but that is by necessity. The whole point of my arguments have not been that the "ought" is the more important part, but that it's an inescapable part. Law is not mathematics.
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On February 12 2015 15:20 IgnE wrote:Show nested quote +On February 12 2015 15:07 Introvert wrote:On February 12 2015 14:40 IgnE wrote:On February 12 2015 14:03 Introvert wrote:On February 12 2015 13:26 IgnE wrote:On February 12 2015 10:52 Introvert wrote:On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff. The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above. Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law. So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do. I agree to an extent, just because the Court declares something for some reason doesn't make it right or rational. But I'm kind of going back to something we've discussed before, which is order. I think the government is most effectively used and constrained when it relies more on following the logical train of what came before. So when you say "We need to call things by what they do" I think we are, because how we get somewhere actually matters, espeically since in our system it can alter the future. [I'm removing this example because I think we'll go off track. It has a lot of holes anyway.] So I agree- just because a Court says it doesn't make it meaningful, but the way a Court (or any lawmaking/lawreading body) goes about deciding something has a real effect down the line. Maybe if we had a different system it wouldn't matter so much, but that's not the case. The legal pragmatism, or functionalism, that I've been talking about doesn't run into order problems because the entire purpose is to answer the two questions I had in my first post on the topic:
One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" Right, but you are arguing that the "ought" is the more important part. The thing is, I think the ought is very much tied in with the "how" because "how" provides restraint. It is the stabilizing force. This is a desirable feature in and of itself. There are too many people with too many different ideas of what ought to be, justices included. I don't need them dreaming up new oughts and hows. If we want to change things (like rights), we have other mechanisms. We don't need to go to judges to just make the "right" call. You simply must spend a lot of time focusing on "how." I guess the simplest way to put it is that you can't entirely separate the two questions, at least without additional qualifiers. Every single case necessarily has an "ought" because every case is an ethical question. You don't want justices "dreaming up new oughts and hows" but that is by necessity. The whole point of my arguments have not been that the "ought" is the more important part, but that it's an inescapable part. Law is not mathematics.
Well of course every case has an ought. The idea behind law and justice is "ought"(I say this loosely). I just think that "how" is part of ought. And indeed, law is most certainly not math, though part of me wishes it was, but people aren't numbers or equations, so that's out.
I guess I'll finish by saying that, though arbitrary (and certainly circular) much of what we use for law is, it's preferable to give meaning to the "meaningless" because, on the whole, the end result is better. Instead of individual judges dreaming up ought and hows, we use representatives, presumably enacting the will of the people, answering the "social" questions. Better them than chosen-for-life lawyers.
That has been my main point.
It's not like conservatives have, if I may borrow your phrasing, a fetish for law and legalese per se. At least I don't. I rather like the system we have, but it could be changed, so long as there was some coherent framework under which to work.
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On February 12 2015 15:40 Introvert wrote:Show nested quote +On February 12 2015 15:20 IgnE wrote:On February 12 2015 15:07 Introvert wrote:On February 12 2015 14:40 IgnE wrote:On February 12 2015 14:03 Introvert wrote:On February 12 2015 13:26 IgnE wrote:On February 12 2015 10:52 Introvert wrote:On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff. The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above. Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law. So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do. I agree to an extent, just because the Court declares something for some reason doesn't make it right or rational. But I'm kind of going back to something we've discussed before, which is order. I think the government is most effectively used and constrained when it relies more on following the logical train of what came before. So when you say "We need to call things by what they do" I think we are, because how we get somewhere actually matters, espeically since in our system it can alter the future. [I'm removing this example because I think we'll go off track. It has a lot of holes anyway.] So I agree- just because a Court says it doesn't make it meaningful, but the way a Court (or any lawmaking/lawreading body) goes about deciding something has a real effect down the line. Maybe if we had a different system it wouldn't matter so much, but that's not the case. The legal pragmatism, or functionalism, that I've been talking about doesn't run into order problems because the entire purpose is to answer the two questions I had in my first post on the topic:
One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" Right, but you are arguing that the "ought" is the more important part. The thing is, I think the ought is very much tied in with the "how" because "how" provides restraint. It is the stabilizing force. This is a desirable feature in and of itself. There are too many people with too many different ideas of what ought to be, justices included. I don't need them dreaming up new oughts and hows. If we want to change things (like rights), we have other mechanisms. We don't need to go to judges to just make the "right" call. You simply must spend a lot of time focusing on "how." I guess the simplest way to put it is that you can't entirely separate the two questions, at least without additional qualifiers. Every single case necessarily has an "ought" because every case is an ethical question. You don't want justices "dreaming up new oughts and hows" but that is by necessity. The whole point of my arguments have not been that the "ought" is the more important part, but that it's an inescapable part. Law is not mathematics. Well of course every case has an ought. The idea behind law and justice is "ought"(I say this loosely). I just think that "how" is part of ought. And indeed, law is most certainly not math, though part of me wishes it was, but people aren't numbers or equations, so that's out. I guess I'll finish by saying that, though arbitrary (and certainly circular) much of what we use for law is, it's preferable to give meaning to the "meaningless" because, on the whole, the end result is better. Instead of individual judges dreaming up ought and hows, we use representatives, presumably enacting the will of the people, answering the "social" questions. Better them than chosen-for-life lawyers. That has been my main point. It's not like conservatives have, if I may borrow your phrasing, a fetish for law and legalese per se. At least I don't. I rather like the system we have, but it could be changed, so long as there was some coherent framework under which to work.
Pretty much everyone becomes a fan of legalese when it get's their ass out of the hot seat. Criminals love it when enforcers mess up their paperwork and enforcers love when the letter of the law (mixed with some creative memories) excuses them from stupid/morally questionable behavior.
Like when a drug dealer gets off on a badly written warrant or when a lawyer makes a big payday defending someone in every sense but the strictly legal one they know is guilty.
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Cayman Islands24199 Posts
preceding discussion on law vs morality is, although interesting, also not the preferred way i'd look at difference between textual interpretation vs policy focused legal reasoning. it is really another discussion altogether. it also puts the entire 'law' or 'legalese' in hostility which is very unnecessary. you need to get your hands dirty with legal theory in order to understand clearly why textualism is limited and to some extent untenable.
framed in the way of the court as legal dictionary vs the court as a policy organ, there really isn't that much 'legalese' involved.
first of all, there is no completeness of interpretation. the authority of the court or any other legal institution, including parliamentary governments etc, is an act of bootstrapping. in law there are famed decisions in which the court asserted a power to interpret the constitution against other branches and states. for elective governments, this event is in the founding of the state. you cannot generate legal authority from within the system of legal reasoning, or rather, any attempt to do so is circular. (see tarski undefinability for example of how this works) so you need a theory of why the court has authority independent of legal reasoning, and this means you can't simply say, "the law obviously means this if you read it," you need to have a theory of why this particular conception of the role of the court is preferable.
kinda busy will finish this later lol
generally consequentialist examination of the actual impact of law will give you the approach that takes in more empirical information, more flexible and sensitive to actual worldly events, and better fulfill the governing function of law.
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A week after the head of the Federal Communications Commission said he wants to apply strong rules on Internet providers, a Republican strategy is emerging to undermine the proposal.
The Republicans' new strategy looks much like the old: Argue that the FCC's proposed rules will stifle investment, hurt innovation and raise prices for consumers. FCC Commissioner Ajit Pai, a Republican, blasted the draft regulations as overly "interventionist" and "a gift to trial lawyers" in a rare news conference Tuesday.
But the game plan also comes with a twist: Critics will seek to tie the net neutrality proposal -- which aims to ban the blocking or slowing of Internet traffic -- to President Obama. The White House, they say, inappropriately pushed an independent agency to consider far more aggressive regulations than what it had initially proposed.
The two-pronged assault on the administration will be louder and far more combative than anything previously seen from conservatives on the issue, officials from inside and outside the agency say.
"It's going to be Benghazi all over again," said Harold Feld, senior vice president of the consumer group Public Knowledge.
The analogy isn't far off. In recent days, Senate and House Republicans have demanded the FCC turn over all correspondence between the agency and the White House on net neutrality, in an effort to uncover evidence of illegal coordination. And Nevada Republican Dean Heller, a member of the Senate committee that oversees the FCC, has introduced a bill that would force the FCC to reveal its draft net neutrality regulations weeks before they're scheduled to be made public at the agency's Feb. 26 monthly meeting.
The FCC declined to comment on the Republican efforts. A White House spokesman could not immediately be reached for comment.
Source
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On February 13 2015 01:20 {CC}StealthBlue wrote:Show nested quote +A week after the head of the Federal Communications Commission said he wants to apply strong rules on Internet providers, a Republican strategy is emerging to undermine the proposal.
The Republicans' new strategy looks much like the old: Argue that the FCC's proposed rules will stifle investment, hurt innovation and raise prices for consumers. FCC Commissioner Ajit Pai, a Republican, blasted the draft regulations as overly "interventionist" and "a gift to trial lawyers" in a rare news conference Tuesday.
But the game plan also comes with a twist: Critics will seek to tie the net neutrality proposal -- which aims to ban the blocking or slowing of Internet traffic -- to President Obama. The White House, they say, inappropriately pushed an independent agency to consider far more aggressive regulations than what it had initially proposed.
The two-pronged assault on the administration will be louder and far more combative than anything previously seen from conservatives on the issue, officials from inside and outside the agency say.
"It's going to be Benghazi all over again," said Harold Feld, senior vice president of the consumer group Public Knowledge.
The analogy isn't far off. In recent days, Senate and House Republicans have demanded the FCC turn over all correspondence between the agency and the White House on net neutrality, in an effort to uncover evidence of illegal coordination. And Nevada Republican Dean Heller, a member of the Senate committee that oversees the FCC, has introduced a bill that would force the FCC to reveal its draft net neutrality regulations weeks before they're scheduled to be made public at the agency's Feb. 26 monthly meeting.
The FCC declined to comment on the Republican efforts. A White House spokesman could not immediately be reached for comment. Source
I am so very worried about Net Neutrality. I know I've voiced these concerns before, but from my point of view, there's no good option. ISP's are by-and-large vile scum who would love to get rid of the openness of the internet if they thought there was money in doing so. But likewise, the government isn't any more trustworthy, especially considering how many FCC officials worked for ISP's or other media companies in the past.
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The government doesn't actually have to do anything, it just needs to declare the internet a public utility and that's it. They don't need to create any institutions or something, so there is no need for trust.
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On February 13 2015 02:29 Nyxisto wrote:
The government doesn't actually have to do anything, it just needs to declare the internet a public utility and that's it. They don't need to create any institutions or something, so there is no need for trust.
Do you really believe they'd stop there though? I don't. Not with the NSA wiretapping still going on, and how many FCC officials had or even still have ties to ISP's.
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Well they can apparently do that anyway, so I don't think net neutrality is going to make that any worse.
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On February 13 2015 01:09 oneofthem wrote:
generally consequentialist examination of the actual impact of law will give you the approach that takes in more empirical information, more flexible and sensitive to actual worldly events, and better fulfill the governing function of law.
But this isn't what the American courts should be doing. I know some justices today disagree for sure, but the Courts should not be in the business of "ought" or policy. They are an interpretive body to ensure something is not unconstitutional. Regardless of personal detestation of such policy. The courts shouldn't be in the business of interpreting laws in regards to their own pleasures or whatever the latest poll numbers say.
Unfortunately, the system is hopeless corrupt and perverted at this point, with law schools (packed with ultra-leftist professors) cranking out new judicial activists every day that view their job to sit on the bench and engage in social justice policy engineering. Just look at the latest nominee for AG as a prime example.
The Constitution is a living document, and it evolves when amendments are passed, not when 9 unelected justices deem it to have evolved.
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Cayman Islands24199 Posts
rest assured your post will be shown to be infantile in due time. point of first segment was to dissuade people from substituting the obviousness of a literal reading in place of the obviousness of choosing the literal reading.
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On February 13 2015 02:29 Nyxisto wrote:
The government doesn't actually have to do anything, it just needs to declare the internet a public utility and that's it. They don't need to create any institutions or something, so there is no need for trust.
That is the government doing the worst possible thing. Making it a utility subjects it mountains of rules and regulations.
I am not a fan of paid prioritization, but with certain companies' products increasing bandwidth usage, the current situation is untenable for the long run. Someone is going to bear the cost burden for all this bandwidth. Ultimately, it will be the consumer, via increased rates from ISP or increased prices for services such as Netflix. I would prefer to pay the rates for the services I use, not just a plain increase in ISP fees.
I don't trust corporations to solve this problem, but I trust the government even less. Keep the government out of this. I don't need Obama regulating what internet sites I visit.
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On February 13 2015 03:25 oneofthem wrote:
rest assured your post will be shown to be infantile in due time. point of first segment was to dissuade people from substituting the obviousness of a literal reading in place of the obviousness of choosing the literal reading.
Nah. I just disagree with the underlying corrupt "legal theory" that results in your conclusion. This is a very similar problem to the gay marriage debate that sparked this whole legal tangent.
The simple fact is, no matter how much I detest it, conservatives cannot put forth a valid legal argument to prevent gay marriage because they have long since lost the battles around issues and theory that composed the foundation of opposition to such a measure. It is why the lawyers for the anti-gay marriage side have to argue such things as procreation to justify their stance.
You can't try to build a house when you have long since let the foundation rot out. The same way that I won't fight you on modern legal interpretation, because it is interpretation designed to reach a certain conclusion. The problem is not in the outcome, but rather the process to get there. The problem is not the ACA court decision, it's the years of perverted legal theory that have culminated into the abomination of the ACA ruling. But the ACA ruling is not the problem, rather just a side effect of over 150 years of incorrect overreach by the SCOTUS.
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Cayman Islands24199 Posts
i haven't talked about the theory yet. judging by your posting i dont think you have much grasp of it so i'll just elaborate my post without specifically answering your complaints.
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On February 13 2015 03:25 hannahbelle wrote:Show nested quote +On February 13 2015 02:29 Nyxisto wrote:
The government doesn't actually have to do anything, it just needs to declare the internet a public utility and that's it. They don't need to create any institutions or something, so there is no need for trust. That is the government doing the worst possible thing. Making it a utility subjects it mountains of rules and regulations. I am not a fan of paid prioritization, but with certain companies' products increasing bandwidth usage, the current situation is untenable for the long run. Someone is going to bear the cost burden for all this bandwidth. Ultimately, it will be the consumer, via increased rates from ISP or increased prices for services such as Netflix. I would prefer to pay the rates for the services I use, not just a plain increase in ISP fees. I don't trust corporations to solve this problem, but I trust the government even less. Keep the government out of this. I don't need Obama regulating what internet sites I visit.
So why does the rest of the world have none of these issues.
Is America special again?
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On February 13 2015 03:54 Gorsameth wrote:Show nested quote +On February 13 2015 03:25 hannahbelle wrote:On February 13 2015 02:29 Nyxisto wrote:
The government doesn't actually have to do anything, it just needs to declare the internet a public utility and that's it. They don't need to create any institutions or something, so there is no need for trust. That is the government doing the worst possible thing. Making it a utility subjects it mountains of rules and regulations. I am not a fan of paid prioritization, but with certain companies' products increasing bandwidth usage, the current situation is untenable for the long run. Someone is going to bear the cost burden for all this bandwidth. Ultimately, it will be the consumer, via increased rates from ISP or increased prices for services such as Netflix. I would prefer to pay the rates for the services I use, not just a plain increase in ISP fees. I don't trust corporations to solve this problem, but I trust the government even less. Keep the government out of this. I don't need Obama regulating what internet sites I visit. So why does the rest of the world have none of these issues. Is America special again?
You will. The vast majority of traffic on the internet involves the US at some point. What happens to the internet in America very much affects the internet everywhere.
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On February 13 2015 03:25 hannahbelle wrote:
I don't need Obama regulating what internet sites I visit.
Good thing that has nothing to do with what's on the table from the FCC and the Obama administration, then?
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On February 13 2015 04:09 kwizach wrote:Show nested quote +On February 13 2015 03:25 hannahbelle wrote:
I don't need Obama regulating what internet sites I visit. Good thing that has nothing to do with what's on the table from the FCC and the Obama administration, then?
Are you really that naïve?
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EPT
