5 ms·

Ideally this would be coming from the legislature, but I'd rather a judge do it if no one else will.

by user3939382 6y ago

giantg2 6y ago
"Ideally this would be coming from the legislature" You mean legally?
- PeterWhittaker 6y ago
  The US is a common law country: legal judgments are one of the three pillars of common law, along with legs&regs and common practice (things that have always been that have been neither established nor prohibited by either of the other two pillars). IANAL. IANAA, but I have lived all my life in a common law country, FWIW.
  - giantg2 6y ago
    If you say that in court you will be called a Sovereign Citizen and told to shut up (ask me how I know...). Even though we are a common law country, the judicial rulings are supposed to be based on statute, regulations, case law, and customs. It seems this ruling takes it further than that. It seems the only basis is the government caused harm doctrine and the application in this case seems contrary to other cases/issues. The courts are required to take other doctrines into account too. For example, if these policies are enacted by elected representatives, then the court would have to find that the aggrieved people were guaranteed those treatment services, shelter, or to be released somewhere else by right in order to overcome that will of the people doctrine. I think that's a hard sell since the legislature hasn't (to my knowledge) cemented that as rights in these circumstances.
    - PeterWhittaker 6y ago
      I have my popcorn ready to watch the appeals process and policy discussions this should engender. I expect that much of the ruling will be struck down, but cannot help but think that the state-caused-danger has legs. Ultimately, my guess is that a superior court will set the judgement aside while upholding some elements as correct, then direct the city and county to address those specific elements deemed to have merit. The end result would be legislative change in the context of elements deemed valid. Or perhaps I am overly optimistic....
      - giantg2 6y ago
        Yeah, the courts generally say that you have to accommodate or remedy whatever the general request or grievance. They generally do not write/rewrite policy. That's supposed be for the executive and legislative branch to come up with. It should be interesting to watch. My guess is we won't hear the final result for a few years... as usual.
        dragonwriter 6y ago
        > Yeah, the courts generally say that you have to accommodate or remedy whatever the general request or grievance. They generally do not write/rewrite policy. That’s…actually not all that true, especially in the case of systematic racial discrimination by local government. School integration, including bussing, is a pretty good example where policy was often dictated in fairly explicit detail by the courts.
        giantg2 6y ago
        In the case of school integration, the prior ruling under Brown was not being followed. That failure to follow that ruling then lead to a second judgement giving judges specific powers to force the correct implementation of Brown if the school districts had not done it themselves. It's very odd to jump directly to writing detailed policy on a first judgment. Usually it's only that a specific policy is not allowed or general issue must be corrected. Usually it takes a failure of valid corrective policy to be implement for the courts to force a specific policy which they have devised.
        dragonwriter 6y ago
        > It's very odd to jump directly to writing detailed policy on a first judgment It is not at all unusual for preliminary injunctions, when they are issued at all, to include specific mandated interim actions to prevent or interrupt ongoing harm. That’s, in fact, the whole reason preliminary injunctions exist.
        6y ago
  - insert_coin 6y ago
    The US was a common law country, then created the constitution based on that common law and now it is a constitutional republic. The constitution is the pillar now not "common law".
    - giantg2 6y ago
      I think he means they accept common law doctrines as part of the law. For example, malicious prosecution is not a statute (in some states) but can still be prosecuted (I forget if they handle it civilly or criminally) under common law doctrine.
      - PeterWhittaker 6y ago
        Essentially. The constitution is the floor the stool sits on, and it supports common law both implicitly (cf, e.g., [1]), and explicitly (cf the 7th Amendment). [1] https://constitutionalism.wordpress.com/2008/09/15/common-law-and-the-constitution/ https://constitutionalism.wordpress.com/2008/09/15/common-la...
MeinBlutIstBlau 6y ago
Judges don't write laws
jdougan 6y ago
You may get that opportunity, the order reads like he's going to run for office.

Ideally this would be coming from the legislature, but I'd rather a judge do it if no one else will.

giantg2 6y ago

"Ideally this would be coming from the legislature" You mean legally?

PeterWhittaker 6y ago
The US is a common law country: legal judgments are one of the three pillars of common law, along with legs&regs and common practice (things that have always been that have been neither established nor prohibited by either of the other two pillars). IANAL. IANAA, but I have lived all my life in a common law country, FWIW.
- giantg2 6y ago
  If you say that in court you will be called a Sovereign Citizen and told to shut up (ask me how I know...). Even though we are a common law country, the judicial rulings are supposed to be based on statute, regulations, case law, and customs. It seems this ruling takes it further than that. It seems the only basis is the government caused harm doctrine and the application in this case seems contrary to other cases/issues. The courts are required to take other doctrines into account too. For example, if these policies are enacted by elected representatives, then the court would have to find that the aggrieved people were guaranteed those treatment services, shelter, or to be released somewhere else by right in order to overcome that will of the people doctrine. I think that's a hard sell since the legislature hasn't (to my knowledge) cemented that as rights in these circumstances.
  - PeterWhittaker 6y ago
    I have my popcorn ready to watch the appeals process and policy discussions this should engender. I expect that much of the ruling will be struck down, but cannot help but think that the state-caused-danger has legs. Ultimately, my guess is that a superior court will set the judgement aside while upholding some elements as correct, then direct the city and county to address those specific elements deemed to have merit. The end result would be legislative change in the context of elements deemed valid. Or perhaps I am overly optimistic....
    - giantg2 6y ago
      Yeah, the courts generally say that you have to accommodate or remedy whatever the general request or grievance. They generally do not write/rewrite policy. That's supposed be for the executive and legislative branch to come up with. It should be interesting to watch. My guess is we won't hear the final result for a few years... as usual.
      - dragonwriter 6y ago
        > Yeah, the courts generally say that you have to accommodate or remedy whatever the general request or grievance. They generally do not write/rewrite policy. That’s…actually not all that true, especially in the case of systematic racial discrimination by local government. School integration, including bussing, is a pretty good example where policy was often dictated in fairly explicit detail by the courts.
        giantg2 6y ago
        In the case of school integration, the prior ruling under Brown was not being followed. That failure to follow that ruling then lead to a second judgement giving judges specific powers to force the correct implementation of Brown if the school districts had not done it themselves. It's very odd to jump directly to writing detailed policy on a first judgment. Usually it's only that a specific policy is not allowed or general issue must be corrected. Usually it takes a failure of valid corrective policy to be implement for the courts to force a specific policy which they have devised.
        dragonwriter 6y ago
        > It's very odd to jump directly to writing detailed policy on a first judgment It is not at all unusual for preliminary injunctions, when they are issued at all, to include specific mandated interim actions to prevent or interrupt ongoing harm. That’s, in fact, the whole reason preliminary injunctions exist.
        6y ago
- insert_coin 6y ago
  The US was a common law country, then created the constitution based on that common law and now it is a constitutional republic. The constitution is the pillar now not "common law".
  - giantg2 6y ago
    I think he means they accept common law doctrines as part of the law. For example, malicious prosecution is not a statute (in some states) but can still be prosecuted (I forget if they handle it civilly or criminally) under common law doctrine.
    - PeterWhittaker 6y ago
      Essentially. The constitution is the floor the stool sits on, and it supports common law both implicitly (cf, e.g., [1]), and explicitly (cf the 7th Amendment). [1] https://constitutionalism.wordpress.com/2008/09/15/common-law-and-the-constitution/ https://constitutionalism.wordpress.com/2008/09/15/common-la...

MeinBlutIstBlau 6y ago

Judges don't write laws

jdougan 6y ago

You may get that opportunity, the order reads like he's going to run for office.