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Yes actually. The courts aren’t there to set law, that is for the legislature. Also by limiting their ruling to the narrowest ruling they can, they keep decisio

Yes actually. The courts aren’t there to set law, that is for the legislature. Also by limiting their ruling to the narrowest ruling they can, they keep decisions as local as possible. Courts handle exceptional circumstances, and it’s important they not rule too broadly, else there can be huge overarching unintended side effects of their ruling. The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.

KorematsuFred 8y ago
That is excellent analogy. This then boils down to globalism vs fractal localism.
xxpor 8y ago
>The courts aren’t there to set law, that is for the legislature I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one. Case law is just as much part of the law as statutes are. This is the fundamental difference between common law systems and civil law systems. https://en.wikipedia.org/wiki/Common_law#Common_law_legal_systems_as_opposed_to_civil_law_legal_systems https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
- pvg 8y ago
  It's not really a 'meme', it just uses a shorthand for 'statutory law' which is what most people think of when they they see 'law'.
  - dragonwriter 8y ago
    > It's not really a 'meme' It is, in fact, a self-replicating unit of behavior. (It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
    - kortilla 8y ago
      That’s like claiming any knowledge is a meme. Kinda destroys the meaning if it just means any time someone repeats a fact.
      - sjy 8y ago
        This is the original meaning given by Dawkins in The Selfish Gene. The word ‘meme’ is more than a repeated fact – first, it doesn’t have to be a fact, and second, it suggests that our culture is the result of evolution in an environment where memes are selected for reproductive fitness (‘virality’).
        wpasc 8y ago
        I've read the Selfish Gene and loved it, but I had NO idea that meme originated from that book. I must have skimmed that paragraph. Thank you for this!
        aeorgnoieang 8y ago
        If I'm remembering the book correctly, it's discussed at some length in a later chapter; maybe the last chapter.
      - dragonwriter 8y ago
        > That’s like claiming any knowledge is a meme. No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
      - zaarn 8y ago
        Any knowledge capable of self-replication is a meme.
    - pvg 8y ago
- sjy 8y ago
  These days there is so much statutory law in the developed world that this distinction is fading away. Yes, it’s technically possible for a common law court to grant a new form of relief that isn’t derived from legislation or binding precedent (eg. the Mabo decision in Australia), but these days the common law is really a ‘god of the gaps,’ and if the courts aren’t satisfied with the common law remedies available 200 years ago or created later by statute, they have very little power to create new remedies. Of course, written laws are always open to interpretation in both the common and civil law system, and that’s what happened in this case (the written law being the U.S. Constitution).
- KorematsuFred 8y ago
  It is not a meme. It is the very definition of American courts. Brits dont even have a constitution and have a very different system from that of USA. Other than appearance there is no similarity between British and American courts. I remember a famous case where a British judge refused to punish a Muslim man who use to beat his wife claiming, that is how the man is cultured and beating wife is part of his religion. Such a disaster is unlikely to happen in USA.
  - wallace_f 8y ago
    Underneath the parent comment -- which linked a Wikipedia article with some educational material on case law vs statutory law vs common law etc -- there are a number of comments like this which just show users didn't even bother to read a Wikipedia page, but were happy to tell the world how it works in their own minds. Maybe there is some important lesson about people here. I think today people think of themselves as above those of the past who took intellectual shortcuts to understanding the world and came to preposterous models of reality. But then you can see just how intellectually lazy people are still today, yet at the same time how hard it is to convince them.
    - xxpor 8y ago
      I find it incredibly ironic that the person's user name is KorematsuFred given the context.
- rplst8 8y ago
  Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
  - xxpor 8y ago
    >Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices. District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
  - dragonwriter 8y ago
    > Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
  - gammateam 8y ago
    The federal courts can create law solely because overruling them is nigh impossible. The Supreme Court exists to rule on constitutional matters, but it is merely the final arbiter and uses that to its advantage based on case law they made for themselves. Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic. When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency. The courts can also overrule itself in a future court case. (The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
craftyguy 8y ago
> The courts aren’t there to set law, that is for the legislature. They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
- cryptonector 8y ago
  And then there's common law, which is essentially judge-made law. Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
  - posterboy 8y ago
    The problem is one of semantics. Law is an ambiguous term and commentators have different interpretations--let's appreciate the irony for a second.
    - cryptonector 8y ago
      Ha, good point. It's worth knowing the difference between law and statute...
      - posterboy 8y ago
        "I say I say I say: Statutory law is not law". This kind of negativity is questionable.
DoctorOetker 8y ago
A big difference between programming and law is that the programmers ultimate incentive is independent of the processors incentive. In law and politics there are multiple agents each with their own incentives, so it is extremely important to uniformize the application of the law (in order to be equal before the law). That nearly all systems do provide leeway for the judge (anglosaxon common law emphasizes this and civil law doesnt, so it's more arguing appearances) is not because it is a feature, but because the law is not that exactly specified. One could imagine each precedent by a judge to be accompanied by a democratic consultation, since in a democracy the people are supposed to govern themselves. While this could allow rampant democratic discrimination (both on factors which are recognized discriminative properties: skin tone, religion, ...; but also on factors not yet recognized as discriminative properties), it would also provide a means for proving our voting behaviour to be discriminative in some sense. In this way unintentional discrimination can be highlighted and corrected. For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
- TFortunato 8y ago
  On reading, this sounds a lot to me like "trial by a jury of one's peers", only the response to the system being (choked for democratic consultations / having massive court backups and shortage of jurors) has unfortunately so far been mostly public apathy, and people being pushed into accepting plea deals / waiving their rights for a jury trial in many cases. EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all. It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
ataturk 8y ago
Yeah, I mean it's not like we would want the incorporation of the 8th Amendment to have any additional implications such as the incorporation of the 4th, 2nd or 1st Amendments, right? I mean, where would that take us? The only Amendment still holding up is the 3rd and that's only because quartering soldiers in people's homes in order to control their lives hasn't become fashionable in modern times. But just wait, they're somehow going to cross the line on that again, too. Every single right that people fought and died to obtain is either under attack or already dead. So while it's great that the SC made this ruling, don't think for a second that it means the pendulum is swinging back towards freedom because it's not.

KorematsuFred 8y ago

That is excellent analogy. This then boils down to globalism vs fractal localism.

xxpor 8y ago

>The courts aren’t there to set law, that is for the legislature I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one. Case law is just as much part of the law as statutes are. This is the fundamental difference between common law systems and civil law systems. https://en.wikipedia.org/wiki/Common_law#Common_law_legal_systems_as_opposed_to_civil_law_legal_systems https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...

pvg 8y ago
It's not really a 'meme', it just uses a shorthand for 'statutory law' which is what most people think of when they they see 'law'.
- dragonwriter 8y ago
  > It's not really a 'meme' It is, in fact, a self-replicating unit of behavior. (It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
  - kortilla 8y ago
    That’s like claiming any knowledge is a meme. Kinda destroys the meaning if it just means any time someone repeats a fact.
    - sjy 8y ago
      This is the original meaning given by Dawkins in The Selfish Gene. The word ‘meme’ is more than a repeated fact – first, it doesn’t have to be a fact, and second, it suggests that our culture is the result of evolution in an environment where memes are selected for reproductive fitness (‘virality’).
      - wpasc 8y ago
        I've read the Selfish Gene and loved it, but I had NO idea that meme originated from that book. I must have skimmed that paragraph. Thank you for this!
        aeorgnoieang 8y ago
        If I'm remembering the book correctly, it's discussed at some length in a later chapter; maybe the last chapter.
    - dragonwriter 8y ago
      > That’s like claiming any knowledge is a meme. No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
    - zaarn 8y ago
      Any knowledge capable of self-replication is a meme.
  - pvg 8y ago
sjy 8y ago
These days there is so much statutory law in the developed world that this distinction is fading away. Yes, it’s technically possible for a common law court to grant a new form of relief that isn’t derived from legislation or binding precedent (eg. the Mabo decision in Australia), but these days the common law is really a ‘god of the gaps,’ and if the courts aren’t satisfied with the common law remedies available 200 years ago or created later by statute, they have very little power to create new remedies. Of course, written laws are always open to interpretation in both the common and civil law system, and that’s what happened in this case (the written law being the U.S. Constitution).
KorematsuFred 8y ago
It is not a meme. It is the very definition of American courts. Brits dont even have a constitution and have a very different system from that of USA. Other than appearance there is no similarity between British and American courts. I remember a famous case where a British judge refused to punish a Muslim man who use to beat his wife claiming, that is how the man is cultured and beating wife is part of his religion. Such a disaster is unlikely to happen in USA.
- wallace_f 8y ago
  Underneath the parent comment -- which linked a Wikipedia article with some educational material on case law vs statutory law vs common law etc -- there are a number of comments like this which just show users didn't even bother to read a Wikipedia page, but were happy to tell the world how it works in their own minds. Maybe there is some important lesson about people here. I think today people think of themselves as above those of the past who took intellectual shortcuts to understanding the world and came to preposterous models of reality. But then you can see just how intellectually lazy people are still today, yet at the same time how hard it is to convince them.
  - xxpor 8y ago
    I find it incredibly ironic that the person's user name is KorematsuFred given the context.
rplst8 8y ago
Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
- xxpor 8y ago
  >Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices. District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
- dragonwriter 8y ago
  > Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
- gammateam 8y ago
  The federal courts can create law solely because overruling them is nigh impossible. The Supreme Court exists to rule on constitutional matters, but it is merely the final arbiter and uses that to its advantage based on case law they made for themselves. Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic. When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency. The courts can also overrule itself in a future court case. (The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)

craftyguy 8y ago

> The courts aren’t there to set law, that is for the legislature. They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.

cryptonector 8y ago
And then there's common law, which is essentially judge-made law. Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
- posterboy 8y ago
  The problem is one of semantics. Law is an ambiguous term and commentators have different interpretations--let's appreciate the irony for a second.
  - cryptonector 8y ago
    Ha, good point. It's worth knowing the difference between law and statute...
    - posterboy 8y ago
      "I say I say I say: Statutory law is not law". This kind of negativity is questionable.

DoctorOetker 8y ago

A big difference between programming and law is that the programmers ultimate incentive is independent of the processors incentive. In law and politics there are multiple agents each with their own incentives, so it is extremely important to uniformize the application of the law (in order to be equal before the law). That nearly all systems do provide leeway for the judge (anglosaxon common law emphasizes this and civil law doesnt, so it's more arguing appearances) is not because it is a feature, but because the law is not that exactly specified. One could imagine each precedent by a judge to be accompanied by a democratic consultation, since in a democracy the people are supposed to govern themselves. While this could allow rampant democratic discrimination (both on factors which are recognized discriminative properties: skin tone, religion, ...; but also on factors not yet recognized as discriminative properties), it would also provide a means for proving our voting behaviour to be discriminative in some sense. In this way unintentional discrimination can be highlighted and corrected. For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.

TFortunato 8y ago
On reading, this sounds a lot to me like "trial by a jury of one's peers", only the response to the system being (choked for democratic consultations / having massive court backups and shortage of jurors) has unfortunately so far been mostly public apathy, and people being pushed into accepting plea deals / waiving their rights for a jury trial in many cases. EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all. It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.

ataturk 8y ago

Yeah, I mean it's not like we would want the incorporation of the 8th Amendment to have any additional implications such as the incorporation of the 4th, 2nd or 1st Amendments, right? I mean, where would that take us? The only Amendment still holding up is the 3rd and that's only because quartering soldiers in people's homes in order to control their lives hasn't become fashionable in modern times. But just wait, they're somehow going to cross the line on that again, too. Every single right that people fought and died to obtain is either under attack or already dead. So while it's great that the SC made this ruling, don't think for a second that it means the pendulum is swinging back towards freedom because it's not.