Author Topic: Hypothetical legal questions (looking in Roy's general direction perhaps)  (Read 59392 times)

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Re: Hypothetical legal questions (probably for Roy)
« Reply #105 on: August 17, 2014, 10:40:12 AM »

Offline mgent

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If I'm out for a walk on a public trail and I find a historical artifact that's kinda cool and unique (but not George Washington's teeth or anything) can I sell it legally, or is that a no-no?  Thanks
Yeah, why not?  Unless it was stolen or a relic.  Finders, keepers.
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Re: Hypothetical legal questions (probably for Roy)
« Reply #106 on: October 22, 2014, 06:58:20 PM »

Offline Eja117

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

Re: Hypothetical legal questions (probably for Roy)
« Reply #107 on: October 22, 2014, 07:00:42 PM »

Offline Eja117

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Also....in the recent non - ruling of all the gay marriage cases....would the court have been required to go state by state? Or did every single state say basically the exact same thing?

Re: Hypothetical legal questions (probably for Roy)
« Reply #108 on: October 22, 2014, 07:06:54 PM »

Offline Roy H.

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

I don't know if there's a consensus.  I'm of the Scalia / Thomas mindset:  precedent should be respect, but not when the original case was clearly wrongly decided.  The Supreme Court has made some massive mistakes in its history; there's no reason to give unconstitutional decisions validity just because it would be hard to overturn them.

I'm mindful of the practical effects of my philosophy.  A commerce clause case like Wickard v. Fillburn was, in my mind, decided horribly wrongly.  There have been dozens of cases that have been decided on its precedent.  Thomas has advocated overturning that decision (I believe in a concurrence in U.S. v. Lopez), and philosophically, I agree with him.  As a practical matter, I'm not sure how the economy could adjust.

The best answer?  Overturn it, and stay the decision to give Congress and the States time to pass a Constitutional amendment. 


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Re: Hypothetical legal questions (probably for Roy)
« Reply #109 on: October 22, 2014, 07:39:21 PM »

Offline Eja117

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

I don't know if there's a consensus.  I'm of the Scalia / Thomas mindset:  precedent should be respect, but not when the original case was clearly wrongly decided.  The Supreme Court has made some massive mistakes in its history; there's no reason to give unconstitutional decisions validity just because it would be hard to overturn them.

I'm mindful of the practical effects of my philosophy.  A commerce clause case like Wickard v. Fillburn was, in my mind, decided horribly wrongly.  There have been dozens of cases that have been decided on its precedent.  Thomas has advocated overturning that decision (I believe in a concurrence in U.S. v. Lopez), and philosophically, I agree with him.  As a practical matter, I'm not sure how the economy could adjust.

The best answer?  Overturn it, and stay the decision to give Congress and the States time to pass a Constitutional amendment.
It would seem a bit of a silly concept to me actually. I mean if there was ever a super precedent it was Dred Scott, right? Glad they sorted that out

Re: Hypothetical legal questions (probably for Roy)
« Reply #110 on: October 22, 2014, 07:46:37 PM »

Offline Roy H.

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

I don't know if there's a consensus.  I'm of the Scalia / Thomas mindset:  precedent should be respect, but not when the original case was clearly wrongly decided.  The Supreme Court has made some massive mistakes in its history; there's no reason to give unconstitutional decisions validity just because it would be hard to overturn them.

I'm mindful of the practical effects of my philosophy.  A commerce clause case like Wickard v. Fillburn was, in my mind, decided horribly wrongly.  There have been dozens of cases that have been decided on its precedent.  Thomas has advocated overturning that decision (I believe in a concurrence in U.S. v. Lopez), and philosophically, I agree with him.  As a practical matter, I'm not sure how the economy could adjust.

The best answer?  Overturn it, and stay the decision to give Congress and the States time to pass a Constitutional amendment.
It would seem a bit of a silly concept to me actually. I mean if there was ever a super precedent it was Dred Scott, right? Glad they sorted that out

Lots of terrible precedents out there.  Dred Scott, Plessy v. Ferguson (which stood for over 50 years), Korematsu v. United States (which still hasn't been formally overturned).


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Re: Hypothetical legal questions (probably for Roy)
« Reply #111 on: February 19, 2015, 09:35:21 AM »

Offline Eja117

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Re: Hypothetical legal questions (possibly for Roy)
« Reply #112 on: February 19, 2015, 09:38:09 AM »

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Splitting hairs to rouse rabbles.
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Re: Hypothetical legal questions (probably for Roy)
« Reply #113 on: February 19, 2015, 09:41:06 AM »

Offline Roy H.

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http://www.huffingtonpost.com/2015/01/21/mike-huckabee-gay-marriage-supreme-court_n_6512042.html

woah woah woah.....What's Huckabee talkin bout Willis?

The time for Huckabee's argument was over 200 years ago.  Judicial review isn't necessarily explicitly in the Constitution, but it's been settled since Marbury v. Madison.


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Re: Hypothetical legal questions (probably for Roy)
« Reply #114 on: February 19, 2015, 09:44:19 AM »

Offline Eja117

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http://www.huffingtonpost.com/2015/01/21/mike-huckabee-gay-marriage-supreme-court_n_6512042.html

woah woah woah.....What's Huckabee talkin bout Willis?

The time for Huckabee's argument was over 200 years ago.  Judicial review isn't necessarily explicitly in the Constitution, but it's been settled since Marbury v. Madison.
Ok. That's what I thought give or take. I mean I knew Andrew Jackson ignored the court, but that's the only major successful example I can think of

Re: Hypothetical legal questions (probably for Roy)
« Reply #115 on: February 19, 2015, 10:01:57 AM »

Offline PhoSita

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Lots of terrible precedents out there.  Dred Scott, Plessy v. Ferguson (which stood for over 50 years), Korematsu v. United States (which still hasn't been formally overturned).

Lochner was a fun bit of legal sophistry.  A lot of those late 19th / early 20th century decisions were.

Adamson v. California is a fascinating read, in which the court goes into a lengthy rationale justifying allowing the states to basically undermine the 5th Amendment right to not be compelled to testify at ones own criminal trial.
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Re: Hypothetical legal questions (probably for Roy)
« Reply #116 on: February 19, 2015, 10:06:19 AM »

Offline PhoSita

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http://www.huffingtonpost.com/2015/01/21/mike-huckabee-gay-marriage-supreme-court_n_6512042.html

woah woah woah.....What's Huckabee talkin bout Willis?

The time for Huckabee's argument was over 200 years ago.  Judicial review isn't necessarily explicitly in the Constitution, but it's been settled since Marbury v. Madison.
Ok. That's what I thought give or take. I mean I knew Andrew Jackson ignored the court, but that's the only major successful example I can think of


It's emphatically the role of the judiciary to say what the law is.


Great quote. (Paraphrasing)


Technically, Huckabee U.S. correct in the sense that the states don't have to accept what the Supreme Court rules as the final say on the law of the land ... They just need to get together and pass a Constitutional Amendment.

(Or they can wait to have a Republican President in a position to replace a couple liberal seats on the Court -- then the balance will be utterly destroyed and all kinds of crazy decisions can come down).
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Re: Hypothetical legal questions (probably for Roy)
« Reply #117 on: February 19, 2015, 10:42:37 AM »

Offline CeltsAcumen

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

I don't know if there's a consensus.  I'm of the Scalia / Thomas mindset:  precedent should be respect, but not when the original case was clearly wrongly decided.  The Supreme Court has made some massive mistakes in its history; there's no reason to give unconstitutional decisions validity just because it would be hard to overturn them.

I'm mindful of the practical effects of my philosophy.  A commerce clause case like Wickard v. Fillburn was, in my mind, decided horribly wrongly.  There have been dozens of cases that have been decided on its precedent.  Thomas has advocated overturning that decision (I believe in a concurrence in U.S. v. Lopez), and philosophically, I agree with him.  As a practical matter, I'm not sure how the economy could adjust.

The best answer?  Overturn it, and stay the decision to give Congress and the States time to pass a Constitutional amendment.
you are going to have to explain Citizens United to me and how Scalia and Thomas follow precedent.

Scalia is one of the most activist justice to sit on the court, he is a Federalist who has forced his agenda on most of America since his confirmation.  I wonder how many times has Thomas voted against Scalia since he was confirmed.

 

Re: Hypothetical legal questions (probably for Roy)
« Reply #118 on: February 19, 2015, 10:45:11 AM »

Offline Eja117

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

I don't know if there's a consensus.  I'm of the Scalia / Thomas mindset:  precedent should be respect, but not when the original case was clearly wrongly decided.  The Supreme Court has made some massive mistakes in its history; there's no reason to give unconstitutional decisions validity just because it would be hard to overturn them.

I'm mindful of the practical effects of my philosophy.  A commerce clause case like Wickard v. Fillburn was, in my mind, decided horribly wrongly.  There have been dozens of cases that have been decided on its precedent.  Thomas has advocated overturning that decision (I believe in a concurrence in U.S. v. Lopez), and philosophically, I agree with him.  As a practical matter, I'm not sure how the economy could adjust.

The best answer?  Overturn it, and stay the decision to give Congress and the States time to pass a Constitutional amendment.
you are going to have to explain Citizens United to me and how Scalia and Thomas follow precedent.

I would really love to read the case where they can justify a citizen v. corporation.
Could you please be ever so slightly more clear?  I'm sure there have been many cases where citizens and corporations were in court and the corporation won correctly. Technically citizen vs corp is just citizen vs other citizens

Re: Hypothetical legal questions (probably for Roy)
« Reply #119 on: February 19, 2015, 10:47:57 AM »

Offline Roy H.

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for all the lawyers out there....did they ever discuss super stare decisis in law school? Is there a general feeling about this in the legal community?

I don't know if there's a consensus.  I'm of the Scalia / Thomas mindset:  precedent should be respect, but not when the original case was clearly wrongly decided.  The Supreme Court has made some massive mistakes in its history; there's no reason to give unconstitutional decisions validity just because it would be hard to overturn them.

I'm mindful of the practical effects of my philosophy.  A commerce clause case like Wickard v. Fillburn was, in my mind, decided horribly wrongly.  There have been dozens of cases that have been decided on its precedent.  Thomas has advocated overturning that decision (I believe in a concurrence in U.S. v. Lopez), and philosophically, I agree with him.  As a practical matter, I'm not sure how the economy could adjust.

The best answer?  Overturn it, and stay the decision to give Congress and the States time to pass a Constitutional amendment.
you are going to have to explain Citizens United to me and how Scalia and Thomas follow precedent.

I would really love to read the case where they can justify a citizen v. corporation.

I don't mind Citizens United.

The basic holding is that groups of people have free speech rights as much as individuals do. 

Can you imagine if they didn't?  Should the government be able to tell groups they can't speak?  What if the government stifled the collective speech of the ACLU?  The Sierra Club?  PETA?  The Teamsters?  One of the Teachers' Unions?

If folks don't like Citizens United, pass a Constitutional Amendment regarding campaign finance reform.  Until such point, though, there's no reason to treat corporations any differently than other groups / collectives.


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