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Stare Decisis is a bitch, and the Supreme Court's broad regard for it, and especially their unwillingness to overturn it except where absolutely fucking necessa

by bmelton 13y ago

Stare Decisis is a bitch, and the Supreme Court's broad regard for it, and especially their unwillingness to overturn it except where absolutely fucking necessary in order to render judgement, effectively turns bad precedent into law. The difficulty with which to find a case to directly challenge it on the merits you want it to be challenged, and have that case escalated to SCOTUS, and have that case be heard, and then receive a ruling clearly in your favor without some other myriad legal issues clouding it from the main point? The odds are infinitesimal.

nitrogen 13y ago
Are there any governments that require the legislature to address ambiguities or other issues with laws raised by the courts, in a sort of common/civil law hybrid? Having a significant chunk of a country's laws based on obscure court precedents rather than deliberately worded legislation seems harmful to the goal of a legally accountable and educated populace.
- anigbrowl 13y ago
  Not that I know of (assuming I've understood you correctly), and coming from a common-law country myself I'd be very reluctant to give up that system in favor of a more civil one, warts and all. It is a real problem though. One book that addresses these problems well is Robert Kagan's Adversarial Legalism. As for the situation in the US, there's a school of thought that argues sufficient resolutions have been lodged with Congress to warrant a Constitutional Convention, and last Spring, Indiana, Georgia, and Kansas passed fresh resolutions in hopes of getting some momentum behind the process. Of course the problem is the mutual suspicion and factional acrimony that would inevitably characterize such an undertaking, but then that was true of the first one as well. I'm with Prof Sanford Levinson of UT in thinking that it would a good idea to give the nation a legal tune-up, but my political views are, ah, eccentric.
  - nitrogen 13y ago
    I like the idea of courts being able to raise legal issues in a way that is binding on more than just the case at hand, but as a non-lawyer, I also want a centralized repository of law that I can be reasonably confident I understand. There are a number of other process changes I would propose to help the public be more informed (e.g. publishing laws as colored unified diffs rather than prosaic descriptions of word-by-word changes), but I doubt anybody who can change them is listening ;-).

by bmelton 13y ago

nitrogen 13y ago

Are there any governments that require the legislature to address ambiguities or other issues with laws raised by the courts, in a sort of common/civil law hybrid? Having a significant chunk of a country's laws based on obscure court precedents rather than deliberately worded legislation seems harmful to the goal of a legally accountable and educated populace.

anigbrowl 13y ago
Not that I know of (assuming I've understood you correctly), and coming from a common-law country myself I'd be very reluctant to give up that system in favor of a more civil one, warts and all. It is a real problem though. One book that addresses these problems well is Robert Kagan's Adversarial Legalism. As for the situation in the US, there's a school of thought that argues sufficient resolutions have been lodged with Congress to warrant a Constitutional Convention, and last Spring, Indiana, Georgia, and Kansas passed fresh resolutions in hopes of getting some momentum behind the process. Of course the problem is the mutual suspicion and factional acrimony that would inevitably characterize such an undertaking, but then that was true of the first one as well. I'm with Prof Sanford Levinson of UT in thinking that it would a good idea to give the nation a legal tune-up, but my political views are, ah, eccentric.
- nitrogen 13y ago
  I like the idea of courts being able to raise legal issues in a way that is binding on more than just the case at hand, but as a non-lawyer, I also want a centralized repository of law that I can be reasonably confident I understand. There are a number of other process changes I would propose to help the public be more informed (e.g. publishing laws as colored unified diffs rather than prosaic descriptions of word-by-word changes), but I doubt anybody who can change them is listening ;-).