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Interesting argument towards the end, although my answer to about half the questions is caselaw.

by 46Bit 14y ago

derleth 14y ago
> my answer to about half the questions is caselaw. True. This is how a Common Law system works, and why rants about 'activist judges' who 'legislate from the bench' are so idiotic in (most parts of) the USA: That's a pretty fair description of how Common Law works. The legislature writes laws knowing that they can't possibly think of every possible fact pattern, every possible scenario the law might be applied to, and the legislators expect judges to apply their judgement to apply the law, clarifying it in the process. They are active because the law was written to be applied by humans, and they legislate to the extent they effectively add interpretations and nuance to the statute law. (The only part of the USA not under Common Law is Louisiana, which inherited its Civil Law system from France, which inherited it from Rome. AFAIK, the entire United Kingdom is under Common Law; the UK is, after all, where the majority of the USA got the Common Law from.)
- jQueryIsAwesome 14y ago
  > The legislature writes laws knowing that they can't possibly think of every possible fact pattern That is know, but the arguing here is that the current legislation is way too vague. Is like a law saying: "Is illegal to be evil"; is haves a very subjective definition to have real-world implications and can be abused easily.
- monochromatic 14y ago
  Why does this imply that rants about activist judges are idiotic? Yes, judges frequently have to determine what the law means. No, that doesn't mean they have completely free rein.
  - derleth 14y ago
    > Why does this imply that rants about activist judges are idiotic? Because all, or nearly all, such rants are idiotic when you know how Common Law works.
    - monochromatic 14y ago
      Lawyer here, and I have a fairly good working understanding of our common law system. Nevertheless, I think there is some truth to the rants about activist judges legislating from the bench.
      - trhtrsh 14y ago
        Yes, every case has an activist judge -- according to the losing side in that case.
        monochromatic 14y ago
        No.

Interesting argument towards the end, although my answer to about half the questions is caselaw.

by 46Bit 14y ago

Interesting argument towards the end, although my answer to about half the questions is caselaw.

> my answer to about half the questions is caselaw. True. This is how a Common Law system works, and why rants about 'activist judges' who 'legislate from the bench' are so idiotic in (most parts of) the USA: That's a pretty fair description of how Common Law works. The legislature writes laws knowing that they can't possibly think of every possible fact pattern, every possible scenario the law might be applied to, and the legislators expect judges to apply their judgement to apply the law, clarifying it in the process. They are active because the law was written to be applied by humans, and they legislate to the extent they effectively add interpretations and nuance to the statute law. (The only part of the USA not under Common Law is Louisiana, which inherited its Civil Law system from France, which inherited it from Rome. AFAIK, the entire United Kingdom is under Common Law; the UK is, after all, where the majority of the USA got the Common Law from.)

jQueryIsAwesome 14y ago
> The legislature writes laws knowing that they can't possibly think of every possible fact pattern That is know, but the arguing here is that the current legislation is way too vague. Is like a law saying: "Is illegal to be evil"; is haves a very subjective definition to have real-world implications and can be abused easily.
monochromatic 14y ago
Why does this imply that rants about activist judges are idiotic? Yes, judges frequently have to determine what the law means. No, that doesn't mean they have completely free rein.
- derleth 14y ago
  > Why does this imply that rants about activist judges are idiotic? Because all, or nearly all, such rants are idiotic when you know how Common Law works.
  - monochromatic 14y ago
    Lawyer here, and I have a fairly good working understanding of our common law system. Nevertheless, I think there is some truth to the rants about activist judges legislating from the bench.
    - trhtrsh 14y ago
      Yes, every case has an activist judge -- according to the losing side in that case.
      - monochromatic 14y ago
        No.