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Notes -
On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity
Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.
Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.
One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.
Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.
Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.
The law is whatever the dumbest commie at Harvard Law says it is, and that's an end of things.
This is teetering right on the edge of a ban, but you're usually a decent poster when you aren't giving way to the impulse to post low-effort shitposts like this. A mix of AAQCs and a long record of warnings and tempbans means you are getting cut some slack, but if you abuse it again there will be a longer ban.
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There's some optimal degree of formalization of the law that's neither 0% nor 100%. The ancients were very happy to have lawgivers that gave them some written laws that they could finally rely on instead of having each case decided on a judge's whims and nothing else. The moderns live in a world that's having the life choked out of it by infinitesimally detailed laws that are incomprehensible to regular humans, and navigable only by huge and well-funded legal departments.
There's no fixing it, of course. We depend on the systems shaped by those laws. The only thing to hope for is parallel systems emerging that outcompete ours with slimmer lawbooks. Which doesn't seem likely anytime soon.
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Thank you for the article! I quite enjoyed it. Reminded me of what Feynman wrote about great men. It reminds me of the episode "The Supremes" in The West Wing Season 5 as well. I thought your arc pretty much is the story of idealists being disappointed with reality and become a cynic. I think "Justice" with the capital J is like "Truth", it is something almost always unreachable, yet the correct thing, and the beautiful thing, is to keep striving towards it. The legal system, and as the article demonstrates or that West Wing episode dramatizes, benefits from intelligent, talented, thoughtful, experienced, and hard-working individuals with variety of viewpoints coming together to inspect problems from a variety of angles so that in the debate and discussion and verbal sparring and arguments, something closer to "Justice" can be found. At least, that's my optimistic takeaway.
Edit1: Oh man I love the clip, everyone should watch it (only 2m36s) https://youtube.com/watch?v=cYR3ZzOBg1Q
Honestly I hate this view. Law shouldn’t be debatable. It’s should be black and white. And this I think will increasingly be an issue. Sure I can nerd out and think the debates are intellectually stimulating, but at the end of the day a Dem will vote one way and a GOP the other way. You might as well just nominating Ketanjis who might write poorly but vote your way versus a Scalia. It’s basically just a super Senate. The opinions are just a game for some nerds.
A big reason we got here is because justices thought it was an interpretive game to twist some words to get the political outcome they wanted instead of calling balls and strikes.
Law is not Justice. It's about society trying its best to deliver something close to Justice. Why must law be "black and white"? Is it some notion of yours that things must be legible and understandable and if only everyone comes to the same conclusion from the same set of facts? But that isn't the case isn't even on the most mundane of things. Some people like Italian food, some don't. Some love horror movies, some don't. Some like running, some don't. Some likes this toy and not that toy. It's the same set of facts, very different conclusions. Now with matters of property and life and death, people will have very different opinions.
It's always been an issue. It ebbs and flows. People are always disappointed in each other choices and opinions all the time (religion, monarchs, slavery, race, relationship preferences, pronouns, immigration, etc.). The basis of a society is the ability to smooth out these differences OR live with each other in spite of the differences. Preferably with little to no violence.
From the same West Wing episode:
"Plenty of good laws [was] written by the voice of moderation"
"[But] who writes the extraordinary dissent? The one-man minority opinion whose time hasn't come. But 20 years later a court clerk digs it up at 3 in the morning"
Everyone has an opinion and can add, detract, modify, subtract, stimulate, influence, persuade others in society. Would I rather have a better writer and persuader in a liberal justice? Absolutely. And to be fair, Ketanji hasn't finished her term, nor has the long view of history descended after the present day has forgotten about her to truly analyze and evaluate her whole body of work. The final word has not yet been written on Ketanji, nor even a revival, as opinions turns and goes. I understand the need for answers now, immediately, full present. But look, you are here, I am here. As pointed out in a discussion last week, me, you, everybody, seems to have wildly different views. I don't know how many of us will actually influence society as a whole, but "no raindrop think it causes the flood" and "to change the world start with changing yourself" perfectly summarizes my thinking to this.
I reject your view of the world that things must be "perfect" and that "balls and strikes" can be called. Reality is way too messy and have way too many details.
Even if I came back to your analogy of how law should be like math, there are plenty of things that are "ideal" but can never be "real". For example, tangent waves, there are no real life examples of tangent waves. There are plenty of things that are modeled by tangent waves at close enough significant figures that it doesn't matter but no true always-reaching-infinite-slope tangent waves.
Or there are plenty of things in math that are "black and white" in one context, but is totally different in another. A 3-sided polygon (a triangle) can’t have three 90-degree angles in flat 2D geometry. But draw the triangle on a sphere, and suddenly it can. The context changed, and the rule broke immediately.
Also btw, did you forget the apocryphal legend of Pythagoras and the killing of Hippasus for the exposure of irrational numbers? Life is a series of games, and the game changes under your feet all the time.
I am not asking for a perfect system. The Law though is different. It’s suppose to be blind, fair, and unbiased. That’s the mythology of the law. So the idea that 10 or more viewpoints at UC exists means there is a lot of bias in the law.
We have people who are allowed to have bias in our system. Elected officials. They can of course be tyrannical. I can and other citizens can have opinions on them and their actions. They can do bad things like legalize slavery. It’s not the job of a judge to have an opinion on slavery. If the law written by elected officials says that you are a slave then a judge is required to rule you are a slave if you challenge it in court. That is black and white. The Law of the Land. We have a system for people to have bias and it’s called Democracy.
So you are asking for a perfect system? Or at the very least, that people has to perfectly attune to the textual reading of the laws? You saw in the other example https://novehiclesinthepark.com/ of how that quickly becomes untenable no? Why must we wallow in the disappointment of cynicism? Why isn't optimistic realism (or I suppose optimistic nihilism) an option for you? (You've obviously already rejected the delusional mythological idealism).
If you have a society of peoples that decided to enslave others, don't worry, there will plenty of judges who will rule slaves are slaves, and the judges that don't won't be judges of that society for very long.
In this whole conversation, I've come to realize that you have many things you consider in very black and white processes. Law has to be black and white. Democracy is allowed to be not black and white, Law is not allowed. Do you realize that in your thinking?
First, I specifically said I do not want Judges to be a perfect system. I specifically cited slavery which is not perfect for a judge to declare someone a slave. It is their role in our society.
You shouldn’t cite “no vehicles in a park” because multiple people have responded that it was EASY to understand the rule. Vehicles has a specific meaning in the vernacular. We understand what it means. (As an aside in Constitutional Law one issue is the vernacular changes on 200 year old laws).
On the point of slaves being ruled slaves I am specifically saying Judges often do NOT follow the law. You seem fine with this. I am not. This is why you like the debate societies of Westwing where the person who says the most interesting argument gets to ignore the law and just do what the want to do.
“In this whole conversation, I've come to realize that you have many things you consider in very black and white processes. Law has to be black and white. Democracy is allowed to be not black and white, Law is not allowed. Do you realize that in your thinking?”
I 100% realize that is what I am thinking. It’s black and white. People who are elected get to have biases in decision making. People working as judges do not. This is called rule of law. It’s the same as the difference between an engineer that designs trains and one who operates trains. Designers get to have biases on what they want. Conductors operate the train that was designed.
And since well the people in The West Wing did not do Rule of Law I no longer see why I should play their game anymore as a Republican. Just give me 6 SC Justices with 80 IQ who vote the way I want them to vote.
The issue is that in modern constitutions, you usually have some higher principles at the start that trump any lower one and any lower law has to be interpreted in the context of the principles laid out in the constitution. And the higher you go in these principles the more vague it gets. So from one point of view, this allows us to interpret the law correctly according to the intent expressed in the top rules. From the other point of view, appeals to those vague principles can allow one to derive anything and everything, and this makes a joke out of any lower level laws that a particular judge dislikes.
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If a society democratically, representative or otherwise, legalize slavery, do you expect judges in that society to uphold such a law?
You saw the actual statistical results captured by the site right? That 20% thought a horse is not a vehicle while 80% thought it is right? That there are many things easily agreed to by a large majority, but then with differing details, quickly, opinions diverged right? Also, "multiple people have responded that it was EASY", how do you know that's not just a loud minority? Also just because the majority agreed on something, when does it become tyranny of the majority?
I would appreciate you don't draw up a straw-man of myself so you can fight. I do prefer following the law. I also do prefer judges follow the law. There are plenty of supreme court decisions I dislike but I think is following the constitutional law (for example Dobbs). What I am arguing for is that: you might think they are doing "interpretive word games", but for them, they have strongly held beliefs on how to interpret the law. You've essentially already pre-categorized any way of thinking that isn't like yours as to be "fast and loose" and therefore dismiss the end results.
Well guess what, it's because I changed my mind after listening to people who I disagree with when they make a "rational" point. I think we are similar in this seeing as we're both here, in a place where debate and communication is prized, where opinions and ideas can change. Don't you see? Debate, winning it in public, finish or re-opening a fight, everything contributes to how people will understand and apply the law, or influence how laws are written or stricken down in the future. That is the game!
This brings me back up to the very first question. If a society democratically, representative or otherwise, legalize slavery, do you expect judges in that society to uphold such a law? Is this what you expect? Is this what you want?
"Well that's just your opinion man". It's a very holier-than-thou attitude where you get to define what the "Rule of Law" is and then therefore can decide who is a cheater or not. When that's the point, the one who wins decides what the law means. Also, because if you don't persuade people but just force people, that's just plain tyranny.
I am very clearly if a country Democratically enacts slavery judges 100% have to enforce it. That’s how a constitutional republic works. You seem to disagree with this. This is why I no longer give a shit about legal opinions. You vote for judges that do what you want them to do and I want judges appointed that do what I want them to do. Judges are not the State. They don’t get to make law. They need to uphold the law as written.
My point here though when the top law schools have 10 different legal theories the system basically became figure out the result you want and then pick the theory that says your allowed to do that.
I assume you’re a Dem because West Wing is coded Dem. In the old days the Dems did what I am describing. Figure out what you want like a right to abortion or gay marriage and then pick the theory to use. Now they had smart people who wrote well but it was really bullshit. Now we’ve downgraded to not even pretending anymore. Just put the wise Latina on the court who doesn’t need to follow the law because she’s like wise or empathetic or something. Just give me based judges when the GOP appoints someone now that will do what we want.
The system is the same. Law is just politics and has been least since FDR. The general public doesn’t read the arguments anyway. If I want to bang birthright citizenship it doesn’t matter to me if we have some smart guy who digs up transcripts from the 1860’s to justify the position or some 90 IQ 25 year old whose opinion is nothing more than I don’t like Mexicans.
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If the Judges do not uphold the law, then power does not flow through the law. If the law does not channel power then it is pointless. People wish for power. To the extent that you tell them that power is channeled by law, when it is not in fact channeled by law, you are lying to them. When they figure out that you have lied to them in this way, you will lose the power to persuade them about anything ever again; if you will lie in this way, you will lie in any way.
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The problem is achieving this in practice. For example, see the "car in park" discussion below
I don't think it's a good example for what you want to argue. I scored 100%, and anyway, in real life we solve such issues by having legal vehicle categories, different categories need different licenses, can use or cannot use bike paths, some are allowed on highways, others aren't etc. And there are regulations about what the criteria are for a vehicle to be classified as a particular category. And those criteria depend on manufacturer data and tests and documentation. It's not as easy as one sentence, but that's fine, we are able to cope with it by writing detailed rules that mention engine volume, maximum speed, total weight, size, etc. And for each of those, yes it's fractal, you need to define how to measure the vehicle, with empty or full tank, with an average person sitting inside or not, for the width, do the side mirrors count or not, etc. But these questions don't mean you have to throw your hands in the air and give up. It means you just need to answer these questions as they come up and put them in the rules. It's doable and it's done.
There are much hairier areas of law though, like what exactly counts as slander, or fraud, or how you can determine intent, what kind of assault reaches what level, how do you determine if a certain bodily harm will heal in N days or N+1 days, when the category of severity would hinge on that, since healing isn't an instantaneous event. But in practice, we seem to be able to manage. Doctors and legal medical experts see many cases and develop an intuition for calling it one way or another.
Obviously that scenario is simple, it's just a thought experiment to demonstrate to people how complicated what is logically a "simple" law can get if lawyer-ed sufficiently
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I scored 93% in it. I don’t see the issue with that example. And that is literally only 3 words and a law can be much longer.
My guy obviously "a car in a park" is a solvable problem. The point of that thought experiment isn't to see if you can correctly lawyer a "car-in-park scenario", it is to explain and demonstrate how even an obviously scoped law with a clear purpose can become much more complex than it seem.
I guess it’s a bad example for you to use. It’s an example of 2+2=4. It wasn’t complicated.
And it only uses 3 words and everyone basically agrees what the rule means.
And if you remember my original posts I specifically said laws can have footnotes. If 3 rules gets you 93% agreement. Maybe 15 words gets 99% agreement. Like this example seems to show you can just write things down on paper and people understand it.
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Perhaps historically true, but in modern times it is horribly false. At the outset, modern poor urban youth are now much more lightly policed than suburbanites. Drinking or smoking weed in public is just not payed attention to by urban police forces, same with minor property crime. So they are simply not being arrested for misdemeanors that the suburban kids would be. And as a result they also aren't picking up possessory felony charges for drugs or guns. Then at the court level the prosecutors offices in urban situations have much larger caseloads so they offer much more favorable plea deals. A felon with a gun in the city might get offered 3 years while in a suburb he would be lucky to get 7. This also means that if there is a trial less resources are dedicated to the prosecution than would be in the burbs. In a suburb, good luck with an officer forgetting court for even a misdemeanor DUI. In cities, officers miss court dates for felony burglary and robbery cases because they are responding to a more serious offense, or maybe had a 24 hour shift and dont feel like it. Finally, the judges in urban areas are nowadays progressives that, even after a trial, err towards imposing a sentence near the mandatory minimums. In the burbs, you are looking at a maximum sentence if you lose a trial.
But the general rule that the law is not perfectly blind is very true. The other day a cop was murdered by someone who was released by a judge for Armed Hijacking a few days before that. You know not a single judge was releasing someone who did a gun crime THAT day.
It's still true that the Kennedy kid will get off scot free. It's just that there are three relevant classes, not two -- the underclass, which is typically lightly policed and lightly punished, unless they commit a crime against the top class. The massive middle, who are controlled largely by the fact that even a minor conviction can severely limit them (e.g. by denying them professional licenses or certain careers; if you've ever been busted for shoplifting you can never work for a financial institution, for instance, and if you've ever had a DUI conviction most jobs involving driving are off limits) and a major one tosses them into prison and permanently into the underclass, for which they are not prepared and will probably suicide or die of misadventure shortly after. And the top, who can escape consequences with a word to a prosecutor or a judge, except if they lose some power game with others on top quite badly -- though they may even survive that, like Martha Stewart.
Chappaquiddick happened --- a literal Kennedy drove drunk, killed someone, and left the scene of the crime --- and Massachusetts gave him a two month suspended sentence and kept re-electing the man to the Senate for decades until he died in office.
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2 + 2 = 5, for large values of 2.
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An important thing to keep in mind about Law:
PDF: The Law is a Fractal: The Attempt to Anticipate Everything
If the Law is not clear then who gets to decide the rule? I don’t think it’s clear that Courts get to. Thinking about the 14th Amendment I don’t think it’s clear the SC gets to make the decision. Jurisdiction has meaning and I don’t see why the SC gets to choose the meaning. Reasonable people can have different meanings.
Ideally the legislature would clarify. I am not sure how this would work with an Amendment. Could a simple bill make the decision or do you need to amend the amendment for clarification? I definitely think the legislature gets first crack at it but I am not sure what process is necessary a bill or amendment to clarify an amendment. If it’s only a bill then you could to limited extent be modify the Constitution whenever the legislature changes.
If the legislature does nothing then who gets to decide the meaning of “Jurisdiction”. I don’t believe the courts should do anything that would be creating policy. The definition of jurisdiction isn’t in the amendment. They have nothing to base a decision.
Absent legislative action then I guess the executive branch gets to define the word and citizenship status is just an executive order. And if your born 2 min before a GOP POTUS leaves you are a non-citizen for life and if your born minutes later your a citizen for life. Legislative or Executive Action each are more Democratic when bills are passed that lack clarity on meaning.
But I do think in most situations you can write legislation that solves 90-95% of cases in footnotes to legislation. A lot of legislation is written very poorly.
Courts are the entities that our system designated to resolve legal ambiguities. Largely for reasons of expediency. Court interpretations of statutes or the constitution can be overridden by the legislature or by amendment but, in the moment, we need someone to decide.
These questions come up in the context of pending cases. Take the example of Wickard below. Whether he was in violation of federal law and must pay a penalty turned on whether his growing wheat was "interstate commerce." If judges are not empowered to answer this question, what does this case look like? Is it put on hold until Congress passes a law? The constitution is amended? Can anyone get their federal prosecution deferred by finding an ambiguity (according to who?) that would require a statutory or constitutional amendment to clarify?
I don’t believe it is clear at all that the courts have the ability to make law on ambiguous texts. In fact courts have recognized this as vague laws are generally not considered constitutional such as the Logan Act.
Historically they have thrown out convictions based on vague laws. In the case of a vague amendment it would seem the power to me would go to the most Democratic branch of government for clarification which would be congress followed by the Executive if Congress does nothing. But yes in this case it would seem to be a sort of constitutional crisis on who has the power.
In the case of the 14th I think they need to punt the case and make it an executive decision otherwise they are overstepping their authority. If the administration violates something that is clear then the SC can claim authority.
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The jury of one's peers. You can't trace the border of the Mandelbrot set, but you can pick a specific point and, with arbitrarily high probability, decide whether it belongs to it or not.
The jury of one’s peers in our system does not decide the rules. The judge gives juries instructions on the rules. And I don’t believe the judge either gets to “make up the rules” or atleast they shouldn’t. The rules come from the legislator. The question is how interpretive do judges get to be on the “rules” and who actually gets to be the rule maker.
The jury makes deterministic decisions on the the evidence in the case and whether the “rules” given to them were broken. When juries make up the “rules” we call that jury nullification which happens but I am not sure we consider that allowed.
It varies for different definitions of "we", "that", and "allowed".
Perhaps the strongest case for "not allowed" is that juries are given explicit contrary instructions. Perhaps the strongest case for "allowed" is that there's very few other good reasons to conscript a bunch of random unqualified jackasses off the street to make judgement calls about a trial when there's already a highly trained person, literally titled "judge", right there. The "of their peers" bit isn't added to "jury" because legal types hate concision, it's because that part is critical to nullification protecting against laws that seem good to upper class judges but not to the class of people affected.
(Of course, the strongest case for "shouldn't be allowed" is that often upper class people are just more correct about what's good. E.g. it's much harder to protect unpopular rights if anyone criminally retaliating against their exercise might get let off by a jury nullifying the crime, or at least might be impossible to prosecute in the face of hung juries with some members nullifying the crime.)
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But I don't have twelve peers. Guess that means I'm the law!
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It would seem like we could have a hierarchy of laws. If No Vehicles in the park is a rank 4 law and police may proceed on any available path or road in an emergency with their sirens and lights operating is a rank 3 law then both can coexist because a rank 3 exception supercedes a rank 4 law.
Isn't that part of what the common law system does? A practical hierarchy is created and citations refer back to prior precedent in applying the unwritten hierarchy.
Okay but what about say a wheel chair? It is a vehicle. Maybe you have ADA so perhaps that trumps.
What about stroller?
In law school I asked, "what about shoes?" The professors liked it I suppose.
Does the posted 10mph speed limit on the paved multi-use path apply to Sabastian Sawe out for a morning jog at 13mph?
Maybe you jest, but there was a ministorm in my country where foreign media reported it as Slovak government banned running by limiting limit for pedestrians to 6km/h.
Of course all they did was that they defined the value of "walking speed" in the law, but that speed only applies to vehicles, especially electric bikes or scooters who are driving on the sidewalks among pedestrian traffic.
By the way it was a funny thing as many people in Slovakia scratched their heads and saw first hand how sensationalist many "respectable" media were. It was Gell-Mann Amnesia effect on large scale, as domestically it was considered a good law or at least good intent aimed at a real problem of people driving around on the sidewalks with scooters going 40km/h.
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Great little quiz/game about this https://novehiclesinthepark.com/
It's just in general really difficult to come up with a rule that is
Simple to track and consistently enforce
Covers all potential cases, including adversarial readings.
Doesn't confuse a good number of people with legitimate arguments to how it can be interpreted.
And the fact that nobody's actually able to hold a legislator to account for intentionally writing laws that fail any (or all) of those three conditions; a few laws are clearly designed the way they were to intentionally provoke adversarial readings for power reasons.
Which might not be the point the game's necessarily intending for you to notice, but it is something I feel is pretty apparent- I'd say someone who came up with a law like that while failing to even define terms is incompetent at best, and is the reason anti-social women (and men, but mostly women) feel as entitled as they do to call the cops on someone "driving" an R/C car in the park.
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I got 100% on the quiz. Seemed straightforward to me.
My experience as a moderator has definitely colored my opinions on the law and rules. I think the intention and purpose of a law are very important. And the letter of the law is not very important. Also people can violate rules and the authorities can decide 'no punishment'. Thus police car and ambulance are violation of the rule, but not necessarily a punishable violation.
The spirit of a law may be more important than the letter, but nobody bothered writing the spirit down. It's floating around in the ether, formless and powerless. The letter's all we've got.
We wrote down the spirit of the rules in the sidebar here. Many laws are often proceeded by a section dedicated to the purpose of the law.
Some laws are handled in spirit rather than just the letter. Murder is an example. We do not ban all the ways in which you can commit murder.
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Honestly I took it and scored 93% in the majority. So the rule seems clear to me.
96% here, and my exceptionA non-functional vehicle is still a vehicle, a tank is a vehicle, and it still counts when it's part of a monument would have been covered by other permitting and planning work anyways.
Same as me! Actual laws like this usually say "motorized vehicles" which makes almost all of the other quiz questions non-ambiguous, but I guess there'd still be some ambiguity about the tank depending on exactly how it was deactivated.
That does resolve a lot of questions, although different types of bikes available today might leave a few questions: fully electric push-to-go bikes are clearly "motorized"; old-school, er, acoustic bikes aren't, but the case of e-assist bikes, which require pedaling to ride, still seems unclear to me.
By the letter of the law, e-bikes would definitely count -- vehicle (check) with a motor (check). (those scooter things can fuck off too)
The trouble is, boomers and environmentalists like them, and they are running the place!
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Then there's bikes with "electronic" (electromechanical) shifting but no non-human motive power. I'm waiting for the day some anti-bike cop busts someone for an e-bike violation over this, and the court (being a "the cop is always right" traffic court) accepts it.
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I don't think our law system was ever meant to be mathematics or purely procedural. The point of trial by jury is that, instead of an agent of the state (judge) judging you at best by the letter of the law or at worst by his personal whims, you get a jury of your peers judging you by local common sense/prejudice. Les Mes gives the theatrical argument for this. The benefit of Common Law is that, instead of the application of the law solely being dictated from above, you get precedent of how the law was applied in reality and hopefully that contact with reality makes the application of the law better and more sensible.
The above system works great ... when you share most values with your countrymen. If you think your neighbors lack common sense and/or their prejudices are wrong and/or harmful, then their influence will move both juries directly, and precedent indirectly via the judges their representatives vote in, in directions you don't like. A cliché example of this would be being judged by an ethnic outgroup. I'll note European countries which don't have common law also have the problem of internal values conflict and the problem of sharing a state with people you fundamentally disagree with is a perennial human issue, so common law and trial by jury are not the issue.
I think a lot of the Constitution worship you see among boomercons is cargo culting. I think the constitution, and it actually sticking, is one of the greatest social achievements in human history. Ask the French or Latinos how easy keeping a constitution is. At the same time, the founders consciously knew that the Constitution was a tool and agreement to promote values they cared about and create an agreement that would let the states function together. Treating following it as an end in itself, like it was the 10 Commandments, was never how they viewed it. Most leaders of the early republic, including later ones like Andrew Jackson, recognized that keeping the social constructs that the 'union is perpetual' and 'the constitution is supreme' were foundational to the functioning of society, but the end-goal was always securing people's wellbeing and liberty rather than following the constitution for its own sake.
To that end, everyone agreeing to treat the constitution and union as inviolable while still manipulating procedural outcomes seems to have been the dominant trend/strategy in our history across the strong majority of factions.
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Law is a social construct but that doesn't make it "not real" either. There will always be people who misconstrue and purposely interpret things in the way they wish, but widely agreed upon rules provide a schelling point for society to focus on. Despite the numerous attacks on our constitutional rights since our founding, would be oppressors have still been consistently forced to chip away at the margins rather than do away with the concepts itself. Even the most anti free speech/anti gun/anti whatever idealogues are stuck having to try to find something to reach for.
Consider for instance the Trump admin's continued efforts to implement tariffs. They're not just saying "we're doing tariffs and we don't need a reason or permission", they're finding old statutes with vague wording that maybe if squint your eyes hard enough and are using only your peripheral vision, maybe it was inclusive to use for tariffs in that manner. That they feel the need to justify themselves at all speaks to the value of having a justification.
My offer to sell you a bridge is complicated by the fact that I do not own the bridge in question, but that doesn't make my offer "not real" either. I really am offering you a piece of paper with ink on it, and I really do expect you to give me your money in exchange for it. Probably I can find other people who will assure you that I do own the bridge; doubtless there is some coherent framing in which accomplices form a "schelling point" for "society" to focus on.
I flatly disagree that infringements on constitutional rights have, since the founding, consisted of "chipping away at the margins", but I fully agree that all actions my tribe has taken in the past or will take in the future that might be considered unconstitutional should be framed in this way. Obviously, any action my tribe engages in should be considered as, at the worst, only "chipping away at the margins", not based on the details of what we do, but purely on appeals to vague historical generalities.
"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.". Likewise the suspension of Habeas Corpus under Lincoln.
Obviously "even the most anti-whatever ideologues" are not stuck trying to find something to reach for in any substantive sense. Examples overflow of officials and other power-wielders simply ignoring whatever rules inconvenience them without even a fig-leaf of legal justification. But let us be charitable, and recognize that the sorts of fig leaves you appeal to are in fact useful to would-be abusers; after all, even conmen understand the utility of cooling the mark out. Even under this charitable interpretation, it seems to me that you would need to argue that these fig leaves were sufficiently substantive so as to provide meaningful protection to those being abused. Otherwise, all that you are claiming is that the people abusing their power find it more convenient to whitewash their abuses than to let them stand naked, and the pejorative implications of the term "whitewash" should be all the argument necessary for why this is not a reasonable response to the grievances of the abused.
Previous discussion:
Better link or archive.ph copy.
And Dexter Taylor is now in a maximum security prison where he will likely die, unable to appeal. Because that's how much the Second Amendment is worth in the US.
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To be clear here, this is no actual recorded statement like this. There is a claim by the defense attorney that they were told this by the judge, but there is nothing to support it but his word and his word alone. Maybe it happened, but "defense lawyer claimed something" is not that much without anything else to support it. Even then, even if it did happen, a judge of a criminal court is a very low level position with multiple appeals courts above them. Their word is not final.
If you were living in almost any other country, we wouldn't even be having this conversation. You would simply not have a gun, and you would not be able to make meaningful legal appeal otherwise.
That's actually a quirk of how the law works, that presidents have used in various ways already even today. Consider for instance the Trump tariffs in place for a year were ruled unconstitutional! And in response the Trump admin has pivoted to another, most likely also unconstitutional, means of implementing his tariffs. But likely doesn't mean it has been ruled on in this specific way, and the US legal system assumes new decisions like that is lawful until otherwise said. You and "your tribe" is benefiting from this just the same. Trump gets to fuck around with the economic wellbeing of companies all around the country at his whim because of this presumption.
That it takes time to sort out many wrongdoings is not a great criticism, no system can have immediate and perfect retification. Come up with one that does first before whining that one of the most consistently successful and free country in the world can't do the impossible.
We have multiple circuits where the courts have never, not once, struck a law down for violating the Second Amendment, and as it happens this court is in one of them, and as it happens these circuits are also home to the most draconian restrictions on the keeping and bearing of arms. IIRC, most (all?) of the other circuits have only found a small handful of laws to violate the Second Amendment, and that only very recently.
This state of affairs can be explained in two ways, it seems to me. One explanation is that the Second Amendment has been routinely ignored and violated in its substance, with only the most marginal protection afforded, and that quite recently. The other explanation is that none of the many, many, many laws restricting firearms use or ownership enacted and enforced in the history of our legal system have ever violated the protections afforded by the Second Amendment in any way that demanded formal response except very recently and in the most marginal sense. If this is your argument, then my response is that the Constitution appears worthless to me, and I am opposed both to appealing to its protection and to assenting to such appeals by others from this point on. As it happens, this latter point is my actual position.
"But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
There has been no meaningful legal appeal available for much of the nation's history, and there is no observable meaningful legal appeal in large portions of the country even now. Point to the examples of "meaningful legal appeals" to the Second Amendment, compared to, say, the First Amendment.
The second Amendment does not protect my right to keep and bear arms. My arms protect my right to keep and bear arms. I have guns because I and many others have made it clear that if Blues attempt to disarm us, we are plausibly willing to coordinate meanness against them on a level they would prefer not to risk. Amusingly, it appears that this reality is probably easier to export to other countries than the amendment itself, and I both hope it happens and am dedicated to assisting in the process.
Yes. Once one realizes that procedural outcomes can be manipulated, one is free to manipulate them. This is not evidence that procedure is even weakly deterministic. It is possible to create a system where the Law is a whore, and it is good to recognize when one is, as we are, living within such a system.
Are you familiar with the phrase "the check is in the mail"? How would you describe its meaning?
Your statement is compatible with any level of rectification all the way down to none at all. In reality, the slower rectification comes, the less confident we should be that it is coming at all, and the less trust we should place in the systems that purport to provide it. If the efficacy of rectification mechanisms are in doubt, the proper course of action is not to assume everything is fine, it is to begin poking and jostling the machine with increasing fervor until it delivers meaningful results.
On the other hand, if one derives direct benefit from the breakdown of the rectification machine, the obvious course of action is to build a fence around the machine to prevent anyone from inspecting it too closely, to play soothing music for those waiting in line, to put a curtain up around the output so that those in line can't observe what the individuals being served actually receive, and generally to make loud statements that everything is working totally fine and anyone who says differently is a scammer or a troublemaker.
This is a laughable statement. You appear to be claiming that the freest country at any point in time is the maximum level of freedom one can reasonably ask for. I do not think you actually believe this in any consistent way. I do not believe you would apply this logic to, say, England when it debated banning slavery.
My freedom is not granted to me by the state, but rather is innate to me as a human. There is no objective measure of my freedom, only my own reason and prudence. I do not need your permission to conclude that the level of freedom you and your tribe are willing to grant me is unacceptably low, nor to coordinate meanness with my tribe in an effort to secure the level of freedom you seek to deny us. To the extent that many millions of my fellow tribals are persuaded to see things my way and not yours, the question becomes whether you would prefer to grant us the freedom we demand, or accept increasingly severe levels of conflict to preserve your preferred status quo.
Again, I stand by this statement:
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Ugh, I'm sorry for doing this without responding first to the earlier conversation thread, but:
TheNybblr has made his situation clear, and there's an active court cases with arguments next month over that class of problem; it's not a hypothetical.
Do you believe Dexter Taylor will have a meaningful appeal that either clearly debunks the defense lawyer's claim or sends the case back for a retrial? How about Malinowski? Will New York Citiers be allowed to own stun guns?
The first one is pretty simple, bans on gun ownership for people who have involuntary committed is a common law. Texas and Florida both do it as well. Requiring you submit your history of commitments seems a reasonable part of the ban there. Again, Texas and Florida do a very similar thing except their process is automated https://giffords.org/lawcenter/state-laws/mental-health-reporting-in-florida/
So if anything NJ is lighter there and doesn't pry into your history until you try to get a gun, instead of having a database of everyone by default. Of course this privacy results in requiring personal submission on application instead.
This is the thing most likely to be unconstitutional. Challenge it in court and let the process play out. I never claimed that would be oppressors don't exist, I said that they occur at the margins. Requiring two references is a margin, and even while it's probably going to be ruled unconstitutional, personally it's not a great sign for Nybbler if it's truly stopping him personally from getting a gun.
Because either
He was involuntary committed, and thus wouldn't be able to get one in Florida or Texas either.
He doesn't have two people in his life who trust him to own a firearm and going out of state is easier than finding and convincing other people (many who would be republicans or pro 2nd amendment as New Jersey is a 50/46 state) that he is safe.
It shouldn't be a requirement, but also casually speaking big red flag IMO. I have like ten people in my immediate life who could easily do so if it was required.
We'll see! I don't know the exact specifics of his case and the law as written and what the higher courts will decide based on those. But how would the appeal "debunk the defense lawyer's claim"? He's claiming the judge said something in private, unless he has actual evidence the appeals court isn't going to care. A defense attorney can't say "Dear appeals court, I overheard the judge in the bathroom say he just decided at random. I'm the only one who heard it and there's no recording but please trust me please". He's gonna have to show proof.
No. "the name and hospital affiliation of any mental health practitioner you have ever seen, since birth". Not anywhere you've been involuntarily committed. Any mental health practitioner, you have seen, over your entire lifespan. Talk to a licensed MHP as a high school guidance counselor, and it's technically required. And you have to sign a disclosure request so they can ask hospitals actively.
(Bonus: any errors in an application, even honest mistakes, can be and are used to on their own act as sufficient cause to reject a permit to purchase.)
New Jersey does run its own Point of Contact system including a mental health database. They just also require active disclosure of everything else, too.
((New Jersey, by statute, also prohibits firearm permits from being issued to anyone with a voluntary mental health commitment, though that's not relevant here except to show it's also more aggressive than Florida in stupid ways.))
The specific New Jersey requirement's legal challenges have been bound up by some case consolidation and standing
delatory tacticsproblems, but we do have other circuits who have looked at those policies and decided they were a-OK. My personal favorite is Antonyuk, where the character references survived because there was an imaginable circumstance where they could be constitutionally applied, and because buying and gun and possessing a gun are different. So the challenge has been live since 2022, the district court's stay of other parts of the law that were blatantly unconstitutional was reflexively stayed and never went into effect.SCOTUS booted the case there back down, without any process protecting the plaintiff's rights in the meantime, and given Rahimi, very little chance of the Second Circuit changing their minds or New Jersey behaving any better. SCOTUS doesn't care. It's not a random illegal-immigrant with a human trafficking background on a holiday weekend.
His primary stopping point is the disclosure requirement; he does not have those names of professionals. Beyond that, many jurisdictions will actively refuse character references from out of county, and the law permits them to reject references arbitrarily.
I don't see where you're getting "in private" from, but the trivial and poor debunking would be to say "that didn't happen" or "there is no evidence of this claim", in their own writing. A stronger one would be something along the lines of "here's the trial transcript, it ain't in it".
I'm not asking you whether they'll have a perfect debunk. I'm predicting -- and willing to bet at nontrivial odds -- that they're not going to try.
You're absolutely right in the sense that appeals court isn't going to care. They don't need to debate whether it happened. That's the process.
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New Jersey's law demands an accounting of all psychiatrists that evaluated you regardless of whether those evaluations were connected to judicial proceedings, not the very narrow category of involuntary commitments ordered by a judge after a psychiatric evaluation.
Ah well that probably is overreaching then. Regardless it doesn't change much as my claim has never been that government doesn't do unconstitutional things, it's that they do it at the margins.
Either by severity, like two references and mental health history is still a pretty doable task as opposed to a straight up ban which wouldn't allow you a gun at all or through time such as Trump illegally stealing billions from American companies through tariffs.
We have two choices here. Presume government is acting legally until ruled otherwise by courts or presume government they're acting illegally and prevent government from doing anything until they affirmatively prove their case. Our founding fathers decided the former is preferable in the design of US government.
Does this seem like a good description of Caetano turning to Calce?
I know the process arguments: Caetano was a per curiam, not a ruling; the eventual decision in a different case after the state mooted Caetano only bound Massachusetts (and arguably not even them); yada yada standing self-mooting yada. But those are only arguments about how the process got here. They say nothing about whether the process is reasonable or correct.
Because it seems wildly insufficient to affirmatively prove that the government's acting illegally. Caetano did that in 2016.
And people clearly believe that, for rights they care about, and sometimes even for stupid shit like people appreciating the view of a building. Courts are quite happy to throw out preliminary injunctions and temporary restraining orders, even post-CASA and even where the government is quite likely to win the eventual case. We have processes that could be used to evaluate whether new, poorly-defined, and likely unconstitutional laws should go into effect or be delayed. They just aren't: see Illinois v. Due Process for a trivial example that SCOTUS didn't care about either.
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When you make an appeal to reasonable deference due to a lack of systemic overreach, it is no longer 'regardless' if the systemic overreach is at what you dismiss as the margins. Your outgroup is by its nature at the margins of your consideration.
'I do not mind constitutional rights being revoked for my outgroup' is not a defense.
Why only two? Why are you unable to come up with other choices of how to perceive and proceed?
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I can't pinpoint when I started thinking that law was basically a bunch of bullshit, but I know what case solidified that view in my mind beyond any shadow of a doubt - Wickard v Fillburn. For those unfamiliar:
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Nope. Zero chance. You are just never, ever, ever going to convince me that a single person has ever honestly believed that growing wheat and feeding it your cows is interstate commerce or that anyone believes that such an extension of interstate commerce regulatory powers would have been considered legitimate by the people that penned and signed the Constitution in. If growing wheat and feeding it your cows can be interstate commerce, there is simply no end to the potential malleability of any law on the books.
I sometimes wonder if Franklin Roosevelt didn't do more damage to the US than any other president. In some ways he was a proto-Trump. He saw problems, and rather than try to fix the system, bulldozed through it and made up justifications, then the rest of the government had to rationalize things post-hoc to maintain the veneer of a Republic.
He gets my vote.
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I am very much of the opinion that FDR was the worst president we ever had. I won't say it's impossible to persuade me otherwise, but it would be a tall order. FDR was just that bad. A ton of the problems we face today can be traced right back to FDR treating the Constitution like toilet paper and setting the norm that the President can do whatever he wants.
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I broadly agree. FDR is the man who created the executive branch Trump is wielding today, and he's why we have to deal with such high stakes every 4 years. It was under his rule that the federal government became the largest US employer. But he's remembered fondly, because expanding the federal government enormously remains quite popular.
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It's funny, because I remember studying that same case in PolySci and thinking to myself, verbatim: "wow, so our legal system is literally just whatever some powerful dickhead wants it to be".
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While math like 2+2=4 is generally agreed upon, you might be surprised at the level of disagreement within a given math department. It's probably lower than the law department, but it's not zero. Specific examples would be the Axiom of Choice (either accepting it or not leads to unintuitive results like Banach-Tarski) or opinions on computer-assisted proofs like the Four Color Theorem, although I haven't been in a math department class since ChatGPT came out. Even the analysis vs. topology folks come to somewhat different conclusions based on their chosen axioms.
I guess my point is we could have a legal system that is more mathy. Pointing out UC which has probably been the most conservative major law school has multiple different legal theory branches is not mathy. Especially when it applies to judicial philosophy and not law design.
I laugh when people mostly on the right complain about the length of bills. I think a clear bill would include a broad “thing” but then spend a lot of words describing all the specific applications.
The current thing is birthright citizenship. The designers of the amendment could have spent the time properly defining why they meant by “jurisdiction”. You could have the amendment that’s what it is now in the list of amendments to keep it short for students to read and then have pages of footnotes defining jurisdiction.
Instead you have basically just boosted the power of judges. Each side on the birthright side in my opinion has correct arguments. So who decides? You basically just made judges into legislators. It’s a policy decision.
From an ethical perspective I believe our law schools have failed us. They shouldn’t have theorists and debates. Words need to mean something and the schools should be emphasizing that. Debating things is of course fun and academics enjoy that process. But they could be teaching future lawyers to interpret words as written and since lawyers write most laws teaching them to write laws that are clear and limit a need to be interpretive.
You can have a legal system that is far more like 2+2. Common law to me seems like hogwash. If you want a common law to be law then write it down on a piece of paper and pass that law.
I understand how Sunstein enjoyed viewpoint diversity in law. I don’t want viewpoint diversity in law. I want something where if I read a law passed by congress I know the rules I need to follow. Viewpoint diversity just means law becomes another form of politics.
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I think the development of formal proof verifiers like Lean mostly quelled the practical concerns about computer-assisted proofs. Nobody's going to trust some two hundred page "proof" just because an LLM spat it out, but formalize it and properly verify the proof steps via a smaller verifier that's been itself closely manually examined, and then the remaining parts of it you have to check manually are more like definitions (when Lean verifies that "All Foos are Bars", does its definition of "Foo" and "Bar" match ours?) and much easier to understand and review. There's a real synergy here in iterating between proof verifiers (which will reliably state whether a proof is correct, but weren't very popular by themselves because they require the proof to be spelled out in tedious precise detail) and large language models (which will translate a colloquial proof into tedious precise detail, but aren't very useful by themselves because they aren't reliable enough to trust without rigorous checking).
The aesthetic concerns are still there, though. There are proofs that you can read through (the highlights of, not the every-trivial-step that you have in something formalized) and they enhance your understanding of the subject, and then there are proofs that just make it from point A to point B via some kind of hideous brute force, and there's a reasonable fear that computer-generated proofs or even just computer-assisted proofs are going to have a lot more of the latter instead of the former. There was quite a lot of excitement recently about a couple newly-AI-proven conjectures (IIRC one on primitive sets, another on Ramsey numbers, both on asymptotic behavior?) because, not only were these about questions that human mathematicians had taken more than a passing interest in, but the proofs were short and insightful. Candidates for proofs "from The Book", to use Erdös' old phrase.
Well, everybody agrees that if you accept it then you get certain nice things and certain nasty ones, and that you can have consistent models that accept it and consistent models that don't. There's still a disagreement here, but it's again a disagreement over aesthetics more than over fact.
It's a big disagreement over aesthetics, admittedly. The joke goes: "The Axiom of Choice is obviously true, the Well-ordering principle obviously false, and who knows about Zorn's lemma", and the humor is that emotionally that all feels true even though logically those three things are provably equivalent.
There might even be increasing common ground in the aesthetic question. The Axiom of Dependent Choice is sufficient to prove a ton (I hesitate to say "all", since in my own field we typically just throw up our hands and assume full AC, and I'd love to learn of any results that really do make full AC necessary) of the classic real-analysis and functional-analysis theorems that Zermelo-Fraenkel alone doesn't give you, but it isn't sufficient to force the existence of ugly-seeming things like non-measurable subsets of ℝ, or of insane-seeming things like Banach-Tarski.
Okay, there's "every vector space has a Hamel basis", which may have important implications I don't realize since I just use Schauder bases in spaces where the distinction matters.
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