Legislating from the bench?

[manifold]

Legislating from the bench

I've heard that term used by both ends of the political spectrum, mostly as a negative but sometimes defending the practice. What I don't understand is where the line is? How is ANY court decision that interprets legislation for the purposes of practical application, not itself a part of the legislative process?

Is it possible that this whole term is nothing more than a propaganda peddling talking point?

 

[AllieBaba]

It is the job of the courts to interpret laws and pass down lawful sentences. Period.

They are not elected officials who represent the people, and we are a people who vote laws into existence. Judges are not awarded the power to create laws.

But that doesn't stop the assholes.

 

[Yurt]

it is not a bright line issue....this link does a thorough job of explaining its definition, both historical and modern understanding and some discussion on politics of it

http://legacy.lclark.edu/org/lclr/objects/LCB_11_1_Peabody.pdf

 

[manifold]

It is the job of the courts to interpret laws and pass down lawful judgements.

You'll need to define what you mean by interpret.

I can easily see significant overlap in what may be considered interpretation by some and legislating by others. What is the objective measure to know if something is one versus the other?

 

[del]

i think legislating from the bench is a euphemism for "those nasty judges came out with a decisionwith which i disagree."
as you said, both sides use it as propaganda.

 

[Nik]

It is the job of the courts to interpret laws and pass down lawful sentences. Period.

They are not elected officials who represent the people, and we are a people who vote laws into existence. Judges are not awarded the power to create laws.

But that doesn't stop the assholes.

Judges are not awarded the power to create laws?

Ever heard of a little thing called common law?

Oh yeah, we went over this already and you didn't learn anything then.

 

[Diuretic]

It is the job of the courts to interpret laws and pass down lawful sentences. Period.

They are not elected officials who represent the people, and we are a people who vote laws into existence. Judges are not awarded the power to create laws.

But that doesn't stop the assholes.

Judges are not awarded the power to create laws?

Ever heard of a little thing called common law?

Oh yeah, we went over this already and you didn't learn anything then.

Allie uses a normative approach.

 

[Nik]

It is the job of the courts to interpret laws and pass down lawful sentences. Period.

They are not elected officials who represent the people, and we are a people who vote laws into existence. Judges are not awarded the power to create laws.

But that doesn't stop the assholes.

Judges are not awarded the power to create laws?

Ever heard of a little thing called common law?

Oh yeah, we went over this already and you didn't learn anything then.

Allie uses a normative approach.

So she wants to be like the French and have a civil law system?

 

[Yurt]

It is the job of the courts to interpret laws and pass down lawful sentences. Period.

They are not elected officials who represent the people, and we are a people who vote laws into existence. Judges are not awarded the power to create laws.

But that doesn't stop the assholes.

Judges are not awarded the power to create laws?

Ever heard of a little thing called common law?

Oh yeah, we went over this already and you didn't learn anything then.

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

 

[Nik]

It is the job of the courts to interpret laws and pass down lawful sentences. Period.

They are not elected officials who represent the people, and we are a people who vote laws into existence. Judges are not awarded the power to create laws.

But that doesn't stop the assholes.

Judges are not awarded the power to create laws?

Ever heard of a little thing called common law?

Oh yeah, we went over this already and you didn't learn anything then.

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

So you advocate a civil law system then? Do you think the framers were intending that?

 

[del]

Judges are not awarded the power to create laws?

Ever heard of a little thing called common law?

Oh yeah, we went over this already and you didn't learn anything then.

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

So you advocate a civil law system then? Do you think the framers were intending that?

 

[Nik]

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

So you advocate a civil law system then? Do you think the framers were intending that?

Is it?

Whats the alternative Del?

If we throw out the Common Law system...then what? What replaces it?

 

[del]

So you advocate a civil law system then? Do you think the framers were intending that?

Is it?

Whats the alternative Del?

If we throw out the Common Law system...then what? What replaces it?

stop flailing around, kilgore, and answer yurt's question....

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

 

[Nik]

Is it?

Whats the alternative Del?

If we throw out the Common Law system...then what? What replaces it?

stop flailing around, kilgore, and answer yurt's question....

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

It doesn't.

Now...if you throw out the common law system, what replaces it Del?

 

[Nik]

My bad. It does.

The judicial power shall extend to all cases, in law and equity

 

[del]

Is it?

Whats the alternative Del?

If we throw out the Common Law system...then what? What replaces it?

stop flailing around, kilgore, and answer yurt's question....

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?

It doesn't.

Now...if you throw out the common law system, what replaces it Del?

so far as i know, neither yurt nor i is advocating throwing out common law, kilgore.

are you?

 

[Nik]

stop flailing around, kilgore, and answer yurt's question....

It doesn't.

Now...if you throw out the common law system, what replaces it Del?

so far as i know, neither yurt nor i is advocating throwing out common law, kilgore.

are you?

Ah, I see. He just asks for proof that things he supports are constitutional. That makes quite a bit of sense.

Do you think common law is Constitutional Del?

 

[Sweet Willy]

The manner that laws are construed is the key. A judge doesn't have to legislate, just read the law in a way to fit his decision.

Example:

I once filed for a motion for dismissal supported by the statute of limitations. The statute said the action "must come before the court within ten years."

The complant was filed within ten years but did not go before the court until after ten years.

One judge saw it my way; another did not. One cited a rule of civil procedure that described when "clerk" means "court". One saw it the common sense way, that they didn't make a calendar request in time to actually get it before a judge. The Chief Superior Court Judge won that disagreement between judges.

 

[del]

It doesn't.

Now...if you throw out the common law system, what replaces it Del?

so far as i know, neither yurt nor i is advocating throwing out common law, kilgore.

are you?

Ah, I see. He just asks for proof that things he supports are constitutional. That makes quite a bit of sense.

Do you think common law is Constitutional Del?

yes. do you?

edit-yurt's question was not a request for proof of anything-are you a big ray bolger fan, too?

 

[Big Black Dog]

let's go down the never ending rabbit hole....

where in the constitution does it give any court the right to make law?/QUOTE]

We don't follow our Constitution very closely anymore. With everything that is going on these days, I wouldn't be surprised if they didn't take away the right for women to vote!