Why Lawyers Don’t Understand Law part II

Discussion in 'Law and Justice System' started by PoliticalChic, Dec 22, 2012.

  1. PoliticalChic
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    PoliticalChic Diamond Member

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    4. There is no doubt that the Progressives shredded the Constitution as the primary basis of law, advocating for sociological jurisprudence: 'law’s purpose is to achieve social aims. Legal rules, including constitutional rights, cannot be deduced from first principles. Judges should therefore consider the public interest and “social facts” when interpreting the Constitution.'




    5. Even before Roscoe Pound, Christopher Columbus Langdell , 1826-1906, reduced the importance of the Constitution in the law profession. In 1875 he became dean of Harvard law school. Together with J. B. Ames , who succeeded him as dean in 1895, he revised the curriculum of the school. Langdell is especially famed for the introduction of the "case method" in the study of law.

    a. Langdell's theory was first adopted at Harvard, then at Columbia law school, and in time gained almost universal acceptance. Langdell prepared casebooks in the fields of contracts, equity, and sales. http://www.encyclopedia.com/topic/Christopher_Columbus_Langdell.aspx

    b. Before Langdell's tenure the study of law was a technical pursuit. Students were told what the law is. However, at Harvard Langdell applied the principles of pragmatism to the study of law. Now, as a result of this innovation, lawyers are taught the law through a dialectical process of inference called the case method. The case method has been the primary method of pedagogy at American law schools ever since. Students such as Oliver Wendell Holmes, Jr. would ensure that Langdell's innovation would not go unnoticed. Christopher Columbus Langdell - Wikipedia, the free encyclopedia

    c. It is based on the principle that rather than studying highly abstract summaries of legal rules (the technique still used in most countries), the best way to learn American law is to read the actual judicial opinions which become the law under the rule of stare decisis (due to its Anglo-American common law origin). Not the Constitution...which was eaten away in increments.





    6. The result is that lawyers today respect and honor the view of judges opinions, precedent, over the nominal ‘law of the land,’ the Constitution.





    7. There is the question of the proper function of the courts, and the overreach that some recognize in cases such as Lochner v. NY, and characterized as Lochnerizing…

    a. Lochnerization is a method to examine and strike down economic legislation under the guise of enforcing the Due Process Clause. Lochnerization was first used by the U.S. Supreme Court in the early 20th century, and is derived from the decision in Lochner v. New York, 198 U.S. 45 (U.S. 1905). Lochnerization also describes a method of legal reasoning where a court substitutes its policy judgment for a legislature in overturning legislation.
    Lochnerization Law & Legal Definition

    b. This case is often cited as an example of judicial activism in opposition to textualism, that is finding rights in the Constitution that are not in its wording.

    c. Justice Oliver Wendell Holmes claimed that the court had imposed its own ‘social view,’ and when there are good reasons on both sides of an issue, the courts should defer to the legislature. He pointed to the textual problem, in that the phrase ‘right of contract’ did not appear in the Constitution.






    8. The longest serving Chief Justice, Wm. Rehnquist, explained the fallacy thusly:

    “ The brief writer’s version
    seems instead to be based upon the proposition that federal
    judges, perhaps judges as a whole, have a role of their own,
    quite independent of popular will, to play in solving society’s
    problems.
    Once we have abandoned the idea that the authority
    of the courts to declare laws unconstitutional is somehow tied
    to the language of the Constitution
    that the people adopted, a
    judiciary exercising the power of judicial review appears in a
    quite different light.

    a. Judges then are no longer the keepers of
    the covenant; instead they are a small group of fortunately
    situated people with a roving commission to second-guess
    Congress, state legislatures, and state and federal administrative
    officers concerning what is best for the country.”
    http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf
     
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  2. jwoodie
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    jwoodie Gold Member Supporting Member

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    After 20 years as a practicing attorney, I am convinced that a Napoleonic Code system, as used in France and Louisiana, is superior to our common law system, which we inherited from Great Britain. The Code system places common sense rules into statutes which are approved by legislators. The Common Law system is based on a vague set of legal principles which are continually subject to reinterpretation by attorneys and judges who are pursuing their own agendas.
     
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  3. PoliticalChic
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    PoliticalChic Diamond Member

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    1. In 528 Tribonian was selected, with John the Cappodocian, to prepare the new imperial legal code, the Codex Juris Civilis, or the Code of Justinian.. Rome had a legal system dating back to the ‘Twelve Tables,’ written in 451 BCE, based on the 6th century BCE work of Solon of Athens. Rome, unlike Greece, treated the interpretation of law (statutes and precedents) as a profession. In 530 a second commission led by Tribonian had the objective of revising the way lawyers were educated. Fifteen centuries later, the Codex still exerts its influence on Europe and is known as the Civil Law tradition.


    2. The Inquisition, Renaissance, the Napoleonic Code, and the Holocaust are all, in part, an outgrowth of the lex regia: “The will of the prince has the force of law.”( Quod principi placuit, legis haget vigorem)


    3. Today, European law gives preeminence to legislatures, the institution that drafted the statute prevails.

    a. In Anglo-American Common Law tradition, the institution that interprets and adjudicates the statute has the final word.
    Due to the absence of a jury, and the deference to whomever writes the laws, Civil Law tradition is friendlier to tyrannical regimes than the Common Law tradition.
    Explained in Rosen's "Justinian's Flea."


    4. For me....it's all about checks and balances....
    ...and this is a major difference between the conservative view, pro-checks and balances. and the Wilsonian-progressive's view of administrative government sans accountability.
    Under Justinians’ code the emperor is named nomos empsychos, “law incarnate.”
     
  4. George Costanza
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    George Costanza A Friendly Liberal

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    If possible, could you provide examples of both the former and the latter types of statutes?

    Let me see an example of a "common sense" statute from Louisiana as well as an example of a Common Law statute that is "based on a vague set of legal principles which are continually subject to reinterpretation by attorneys and judges who are pursing their own agendas."

    And, in the latter (Common Law statute) case, please talk a little about the "hidden agenda" that you believe is involved.
     
  5. jillian
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    jillian Princess Supporting Member

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    i would disagree 1,000%. you like the code system because it is what the right tries to pretend our constitution is... something that cannot be interpreted and something for which there is no stare decisis.
     
  6. jillian
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    jillian Princess Supporting Member

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    that's nice... you can google. irrelevant to the discussion, however.
     
  7. PoliticalChic
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    PoliticalChic Diamond Member

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    Is that the United States Constitution to which you refer?


    Constitution:

    Capitalize references to the U.S. Constitution, with or without the "U.S." Place "constitutional" in lowercase. Declaration of Independence, Bill of Rights, First Amendment, and other legislation and treaties are capitalized.
    Writer's Web: Capitalization
     
  8. PoliticalChic
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    PoliticalChic Diamond Member

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    1. I didn't google it.....I read the book.
    Highly recommend same.

    Why is it that folks who don't read assume others don't read?
    Oh....I answered my own question...didn't I.



    2. " irrelevant to the discussion,"
    Wrong again.
    jwoodie referred to the Napoleonic Code....as a positive.
    I put it in perspective and revealed how it supported various evils of European provenance.

    Again:
    "2. The Inquisition, Renaissance, the Napoleonic Code, and the Holocaust are all, in part, an outgrowth of the lex regia: “The will of the prince has the force of law.”( Quod principi placuit, legis haget vigorem)"
     

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