Thursday, April 30, 2009
Our Activist Judiciary = Motherhood (Part 1 of 3)
As the Obama administration seeks to fill the many open spots in our Federal court system, we are almost certain to hear disdain and even hateful attacks on “activist judges.”
Ironically, those who claim to honor our “founding fathers” and their original intent are demonstrating complete disregard when they eschew “judge-made law.”
Throughout our legal history, both before and after the Revolution and the adoption of our Constitution, judges have been making law. That’s where our common law system omes from: judges making law. Few observers have seriously questioned that role of judges until the last 50 years or so.
That is what our common law legal system is: judges making law was far more common than legislative-made law until at least the 1870's and the growth of the Benthanite codification movement: a movement to organize and restate the existing, fully valid and recognized judge-made law into a central set of organized rules. The codification movement was , not an effort to replace judges as a source of law.
Under our common law system, in recent centuries judges sometimes (quite rarely, in fact) make law. Far more often they follow precedent - the prior cases with similar fact patterns decided either in higher courts within the particular system or influential high courts.
Judges are most likely to make law when we undergo significant changes in our society, such as resulted from the industrial revolution and the change from a rural, barter society to an industrial money-based society. Conditions change more quickly than legislatures can keep up with.
Our entire system of governance demands an effective system of checks and balances. Judicial activism is both a check and balance on the executive and on the legislative, and is subject to their counter-vailing powers.
Our Activist Judiciary = Hot Lunch For Orphans (Part 2 of 3)
Some background on what happens in courts:
Usually, in legal cases, (actions at law - not “law suits”) the big argument isn't over who did what to whom; the (or at least a major) issue is "do the facts of this case more closely resemble case A - which had one outcome; or case B, which had another -- what law, what precedent applies to this case?"
Each side is, in essence, saying: "Case A /Case B is the ruling precedent for this case because the facts are essentially the same so that Case A / Case B is the precedent can be applied. And the cases cited by the other side don't apply because the facts are different enough so that that case and the case can be distinguished."
Every now and again, however, either there is no existing precedent or the world has changed enough so that the existing precedent no longer leads to a fair result.
In England, during the growth of the industrial revolution, there was a growing need for currency.
Agrarian societies don't need much currency; people get by trading a pig for a bushel of wheat at the old village pump.
With industrialization, commerce became more complex, and it wasn't so easy to barter a case of mill-shaft lynch pins for a gross of microscope focusing rings.
The amount of currency in circulation was completely inadequate to serve the needs of commerce and to take the place of barter, and governments are usually pretty bad at recognizing and responding to change; especially in those days.
So merchants started creating their own "currency:" promissory notes, drafts, checks, and acceptances, aka "negotiable instruments."
There was little law or precedent for negotiable instruments, of course, and the legal effect of various events in the chain of possession of a negotiable instrument was uncertain.
In a series of cases in the late 1700s, an English court led by judge by name of Lord Mansfield pretty much singlehandedly created the law of negotiable instruments. (They were working with various treatises, such as on the "lex mercantile" -the law of merchants - and using merchants as advisors as to what would make sense, but the modern law of negotiable instruments pretty much rests on the law created by Lord Mansfield and his fellow judges.)
Judicial activism at it finest. And no one has ever complained about what he did or excoriated him as "an activist judge."
Example 2: As the automobile industry in the US was getting started, a basic rule of contracts was that you only had rights against a party if you were "in privity of contract” with that party, essentially meaning you only had rights against the party you had directly dealt with.
Mr McPherson bought himself a nice new Buick auto from a dealer: who in turn had bought the car from Buick. Buick, in turn had purchased the wheels from another company.
It had a defective wheel, crashed, and he was injured.
He tried to sue Buick for compensation for the injuries received because of the defective product.
Buick raised the then perfectly valid defense of "no privity of contract."
Despite the existing state of the law (itself created by judges) requiring “privity, the trial court and the appellate court held for plaintiff. Buick appealed to the highest court in NY, still asserting the defense of lack of privity.
An example of activist” judges making law, by hanging law already made by judges, where the legislature wouldn't or couldn't.
As an activist judge, Cardozo achieved justice AND enhanced the auto industry.
Our Activist Judiciary = Apple Pie (Part 3 of 3)
How often do judges make law? Are there any controls?
Judges are very hesitant to "make law."
Whenever a trial judge rules on a question of law, the decision can be appealed to a higher court. (In some systems/states there is one level of appeal, in others and in the federal system there are 2 levels of appeal.)
All legal appeals say essential the same thing: "The lower court screwed up: it got the law wrong." (The only thing which can be appealed are questions of law - not questions of fact.)
When a court is reversed, the reviewing court is publically announcing: “The court below blew it.”
For a judge to deliberately rule in a new way ("make law") he or she has to darned well convinced that the "new law" is based on sound enough and powerful enough and convincing enough reasons that the appeals court will also agree that the law has to change. No judge likes to be reversed by a higher court, so it takes a mighty strong case for a judge to stick out his/her neck and "make law."
Are the courts usurping the legislature's power?
No. When a court makes law which is upheld on appeal, the legislature can always pass a law reversing the courts, legislatively saying "From now on, the law shall be xyz in such cases.”
So, the system of checks and balances still exists when a judge "makes law."
The only exception to that is where the highest courts rule on constitutional issues.
A legislature can't over-rule a high court's constitutional rulings.
And there is a check an balance on that power, too. A court's constitutional ruling can be "reversed" by legislative action through the constitutional amendment process.
The recent Kelo property law eminent domain case from Connecticut is a good example of courts being “over-ruled” by legislatures.
Kelo was NOT a case of judicial activism, by the way, although many have erroneously called it that.
In Kelo case, the Spreme Court majority ruled that, in deciding the case, they should pay deference to legislative findings and actions, which is the exact opposite of "activist judges" thwarting the will of the legislatures.
There was legal precedent for the arguments advanced by both the plaintiff and the State of Connecticut. (It is extremely rare for a case to go so far when there are good arguments on both sides - few would want to spend the money if the other side has a slam dunk, and courts are overloaded and they will refuse to hear cases without merit on both sides.)
Anyone who calls Kelo a case of "judicial activism" is demonstrating, ah, an incomplete understanding of the case and the holding of the court.
I believe Kelo was wrong decided, myself - I think it was a classic case were the Court should have substituted its judgment for that of the parochial executive and legislative branches of local government. The majority apparently ignored the common fact that local politics is often swayed by commercial and power considerations and that justice is, at east at times, lost in the power struggles of local politics.
But I believe Kelo should be recognized as the very epitome of judicial restraint, and as the very opposite of judicial activism.
There are, of course, mant cases of judges making law: ad that is a good thing
Without “activist” judges, we would be “stuck” with legislative action to decide what the rules are by which we all interact: that is what law is.
Given the, ah, politics of politics, the idea of law bing left solely in the hands of legislatures should frighten people
Rather than some form of evil to be resisted, activist judges are actually good for our society. As there are checks and balances on their deeds - judicial activism is simply one part of the overall system of checks and balances which our “founding fathers and mothers” created for us.
Simply put: our system including judge-made law is not broken.
And, if it ain’t broke.... don’t fix it.
Saturday, April 18, 2009
Friday, April 17, 2009
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I believe the Republican Party has been under the control of fairly extreme right wingers, and has been so for 30+ years.
I truly believe that "united we stand, divided we fall."
Not that we all have to agree on everything.
But we have to respect those who support our democracy.
I'm looking for ideas as to how progressives can help the reasonable, moderate Republicans regain control of their party.
Comments below will be appreciated....
I attended a "Tea Party" on Wednesday
I agreed with some of the things said at my local Tea Party, disagreed with more, and heard plenty of stuff that was simply wrong.
Yes, I believe in democracy. (A republic is one form of democracy, tea party friends - saying we're a republic and not a democracy is like saying Mickey Mantle wasn't a pro ball player becaus he was a New Your Yankee.)
As a liberal, I believe that the central genius of the Constitution was setting up a system of check and balances within the power centers of our nation: in an farm-based barter economy, that was the government.
With the rise of the industrial revolution and the emergence of corporations as a another power center, I believe there also need to be checks and balances on them.
As corporate monopolies took over toward the end of the 1800's, we, the people, through our duly elected representatives, created anti-trust laws to break the monopolies (aka "trusts" in those days.)
It turns out monopolies aren't the only corporate entity which is capable of having significant effects.
Next, we the people, through our duly elected representatives, and after bloody battles, empowered unions as a check and balance on one area of corporate power.
Corporate power and effects on our society continued to grow in many respects.
In the 1920's, the financial industry ran amuck and was a significant cause of the great depression.
So, we the people, through our duly elected representatives, significantly increased the powers of the Federal Reserve, and created other federal banking and finance agencies to balance the financial industry.
Through the 50's, 60's and 70's, our economy blossomed - so did aspects of corporate power and industrial waste dumped in our air and water.
So, we the people, through our duly elected representatives, created environmental protection laws and agencies to balance such corporate power and effects.
The fed government is the only contender for the position of providing checks and balances on corporate power.
In the 1980's, Reagoanomics and anti-government government gained power.
Regulations were ignored and repealed.
In the financial sector, unrestricted uncontrolled financial games has caused the worst financial set of problems since the 1920's and the Great Depression.
Will we, the people, understand that another round of checks and balances on corporate power and its effects on our society is needed?
Starting with regulatory controls on the financial sector AND breaking the unprecedented choke hold of corporate lobbying and power over the representatives of we, the people.
Do I believe that corporations can do good? That capitalism is good?
Yes and yes; when we understand and apply the central genius of our "founding fathers" and invoke checks and balances.