Because they falsely believe that Kavanaugh is like their faggot activist judges and will rule based on his feelings rather than the law and the constitution.
No, they are worried because Roe v. Wade is plainly incorrect, and a ruling based on law would instantly overturn it.
The basis of Roe v. Wade is that banning abortion violates the woman's right to due process of law. Basically, she has the right to do anything unless convicted of doing it before it is done. It is yet another case where the Supreme Court tied the law to a chair and beat it with a rubber hose until it gave in and started meaning what they wanted it to mean.
Brought to you by the same people who decided that gun sales have to be registered because threshing wheat is an interstate activity. No, that's not a joke.
It's actually Griswold v. Connecticut that is plainly incorrect. Roe v. Wade, relying on the precedent set forth in Griswold, is legally defensible. Still doesn't change the fact that a case relying on a case that is plainly incorrect is wrongly decided, but it does follow the applicable precedent.
I'm not sure I agree with the notion that precedent should be non-binding. For one thing, it isn't really binding on the supreme court. What we need is a greater movement to undo the improperly decided cases. We really only need to roll back about 10-20 cases out of hundreds that have been decided over the last 100 years. There aren't that many that are that wrong.
Stare Decisis is a valuable concept and the marketplace requires certainty of legal outcomes.
Who decides which cases are improper? Who decides which should be rolled back?
I do not trust any central committee to decide such matters. That's what we have now with the Supreme Court handing down Holy Precedents.
I disagree that the marketplace requires certainty of outcome. Commerce is ruled by tort law. Reach for the electrical gadget nearest you, assuming you are in the U.S.A. It was almost certainly tested for safety by Underwriters Laboratories, a private company created by the insurance industry to reduce tort losses. Or think about the cable/DSL modem you probably use to communicate with me: it functions because of open source collaborations and the fear of class action lawsuits. Not because of emanations of penumbras discovered by Supreme Court judges.
Traditionally most of America functioned by muddling through. We did not look to court priests to interpret the holy writ of Precedent. The people on the scene worked out their own local compromises. The average of these compromises over time became the tradition for how things were done.
I increasingly think juries should decide matters of law. If you disagree with precedent, you should be able to get a jury of your peers to decide disputes of law. The current system dumps it on the appeals courts. They get a clear set of facts and an insane Supreme Court precedent, and often just give up because re-trying the case would be too tedious.
You have missed my point entirely. The Supreme Court does not have an army. They cannot force anyone to do anything. The people are ultimately the ones who control the government, not the other way around. The last 100 years or so in this country we have forgotten this.
You've done nothing at all to support your contention that the marketplace does not require certainty of outcomes. If anything, you've explained exactly why it does need such certainty, and merely argued that the outcome should be determined by "the average of these compromises...[that] became the tradition for how things were done." I have no disagreement with the sentiment that the Supreme Court should not be the ones setting forth what the rules are, but rather merely determining what the "tradition" is and enforcing that rule. Don't disagreements need a neutral arbiter, whether or not you think the current Court system fulfills that role?
Your statement that "Commerce is ruled by tort law" and the following paragraph show a decent understanding of that body of law, but the statement itself is plainly untrue. Commerce is ruled by Contract law, first and foremost, and US and most of the world has substantially adopted the Uniform Commercial Code for the sale of goods. Common law controls contracts for services in the US. Tort law obviously affects commerce, but its effects on commerce are negligible compared to contract law, which is at the heart of literally every transaction. I suggest you look into the UCC and common law of contracts if you want to make the argument that the marketplace does not require certainty, as there is actually much uncertainty that results from the blend of the UCC and common law, but ultimately there is a "certainty of uncertainty" that allows the system to function quite well almost exactly as you describe.
As for allowing juries to decide matters of law, they have that power already in our system if they know how to use it. In a criminal context they have an absolute right of nullification in order to reach a not-guilty verdict, and in a civil case they can do much the same thing as long as they don't explicitly say so. Most people are completely ignorant about how the system works so when they are on a jury they don't understand what they can and cannot do.
I think you've demonstrated that you've done a fair amount of research and have some interest in this topic, but you clearly lack any significant first-hand experience with the system. I think you'll find that in practice it operates much more closely to how you think it should if you were to look into it.
The real point is, the system is well-designed, it worked well for over 100 years. It's only since the people have become complacent that it has started to falter. The people should never stand for precedents that defy the constitution, but the need to clarify ambiguity and enshrine that clarification through stare decisis is a valuable feature of the system.
What certainty of outcomes? Stare decisis can be used to manufacture any outcome the prosecutor desires. Any controversy can be rhetorically warped until it fits a chosen precedent.
The U.S. federal courts are not neutral arbiters. A vicious cycle has taken hold. First the Progressives trick the courts into establishing a precedent that benefits them. The precedent is used to grind down the economy so that people will vote for more Progressivism out of desperation. Then the increased number of Progressive in Congress install a greater numbers of Progressive judges. Who establish even more Progressive precedents. Etc.
The challenge we face is that the Progressives don't have any goals besides power. They would rather rule in Hell than serve in Heaven. It is not a negotiation between parties of good faith who have differing opinions. It is them tricking everyone else into a series of retreats.
Contract law by itself can only get you specific performance, often too late to do any good. Tort law provides liquidated damages, incidental damages, punitive damages, etc. Contact law is the wolf - tort law is the teeth.
I think you'll find that in practice it operates much more closely to how you think it should if you were to look into it.
I have looked into it. The monstrous Wickard v. Filburn precedent rides the economy like it is a horse. Everything is interstate commerce and therefore regulated by communist central committees in Washington, D.C. They have established a nationwide real estate zoning system under the guise of protecting airplanes from danger, on the theory that the Constitution gives Congress power over the waters of the United States, and the founders simply forgot to write down the word air. An unborn baby was recently beaten to death with a baseball bat under the auspices of Roe v. Wade. The hideous Obamacare cases found that doing nothing is an event and therefore an excise tax can be levied on it, and that the District of Columbia is a state.
In criminal law the federal system has entirely ceased to function. The prosecutors write down what they wish was illegal, sprinkle the magic pixie dust of precedent over it, and the judges rubber stamp whatever indictment is placed before them. Most U.S. court criminal defendants plead guilty just to avoid the risk that a jury will find them guilty of 10,000 years of Wickard v. Filburn violations. A federal judge recently resigned in disgust over the manufacturing of fake crimes.
It’s hard to take you seriously when you continue to conflate contract law and tort law with statements like “contract law can only get you to specific performance.” This is plainly untrue. There are remedies for breach under contract law. There are not under tort unless it is a “tortious breach” which I have seen alleged often but never proven.
You don't see it much because of the deterrent effect.
Suppose ABC Construction builds a house for XYZ Developers using intentionally substandard concrete. Under contract law, their liability is no greater than the cost to jack the house up and pour a new foundation. If the probability that the breach will be discovered multiplied by the cost of repairs is smaller than the cost savings, they do it and turn a profit. It's called strategic breach of contract.
But they don't do it. Because getting caught brings a blizzard of tort claims down upon them: XYZ Developers, their officers' acts and omissions insurance, their shareholders, the home owner, the home owner's insurance, the mortgage insurance, the bank, the insurance for the mortgaged-backed securities, the mortgage investors which includes every pension plan in the world, etc.
You're looking at just the first layer of law. I'm looking at the whole legal and cultural system, which in the U.S. is ruled by tort law.
Consider paying a fare to ride a bus. The buses in Somalia regularly kill people because breaching the contract of carriage is cheaper than the bus fare. The buses in the U.S. are safe and pleasant because everyone at the bus company lives in fear of the trial lawyers. Avoidance of tort liability pervades the whole system.
"Under contract law, their liability is no greater than the cost to jack the house up and pour a new foundation."
This is simply incorrect. You're digging yourself deeper. I wasn't disagreeing with your last comment per se. But it literally is difficult to take you seriously when you double down on incorrect claims.
A "strategic breach" is not a per se "tortious breach as you imply. That's the entire basis of your argument along with your incorrect assertion regarding the damages available under contract.
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Alopix ago
Because they falsely believe that Kavanaugh is like their faggot activist judges and will rule based on his feelings rather than the law and the constitution.
Commie_Meta ago
No, they are worried because Roe v. Wade is plainly incorrect, and a ruling based on law would instantly overturn it.
The basis of Roe v. Wade is that banning abortion violates the woman's right to due process of law. Basically, she has the right to do anything unless convicted of doing it before it is done. It is yet another case where the Supreme Court tied the law to a chair and beat it with a rubber hose until it gave in and started meaning what they wanted it to mean.
Brought to you by the same people who decided that gun sales have to be registered because threshing wheat is an interstate activity. No, that's not a joke.
MaxVieuxlieu ago
It's actually Griswold v. Connecticut that is plainly incorrect. Roe v. Wade, relying on the precedent set forth in Griswold, is legally defensible. Still doesn't change the fact that a case relying on a case that is plainly incorrect is wrongly decided, but it does follow the applicable precedent.
Commie_Meta ago
Thanks for the for correction.
We need to make precedent non-binding. It is nothing but a tool that judges use to write tyrannical legislation.
MaxVieuxlieu ago
I'm not sure I agree with the notion that precedent should be non-binding. For one thing, it isn't really binding on the supreme court. What we need is a greater movement to undo the improperly decided cases. We really only need to roll back about 10-20 cases out of hundreds that have been decided over the last 100 years. There aren't that many that are that wrong.
Stare Decisis is a valuable concept and the marketplace requires certainty of legal outcomes.
Commie_Meta ago
Who decides which cases are improper? Who decides which should be rolled back?
I do not trust any central committee to decide such matters. That's what we have now with the Supreme Court handing down Holy Precedents.
I disagree that the marketplace requires certainty of outcome. Commerce is ruled by tort law. Reach for the electrical gadget nearest you, assuming you are in the U.S.A. It was almost certainly tested for safety by Underwriters Laboratories, a private company created by the insurance industry to reduce tort losses. Or think about the cable/DSL modem you probably use to communicate with me: it functions because of open source collaborations and the fear of class action lawsuits. Not because of emanations of penumbras discovered by Supreme Court judges.
Traditionally most of America functioned by muddling through. We did not look to court priests to interpret the holy writ of Precedent. The people on the scene worked out their own local compromises. The average of these compromises over time became the tradition for how things were done.
I increasingly think juries should decide matters of law. If you disagree with precedent, you should be able to get a jury of your peers to decide disputes of law. The current system dumps it on the appeals courts. They get a clear set of facts and an insane Supreme Court precedent, and often just give up because re-trying the case would be too tedious.
MaxVieuxlieu ago
You have missed my point entirely. The Supreme Court does not have an army. They cannot force anyone to do anything. The people are ultimately the ones who control the government, not the other way around. The last 100 years or so in this country we have forgotten this.
You've done nothing at all to support your contention that the marketplace does not require certainty of outcomes. If anything, you've explained exactly why it does need such certainty, and merely argued that the outcome should be determined by "the average of these compromises...[that] became the tradition for how things were done." I have no disagreement with the sentiment that the Supreme Court should not be the ones setting forth what the rules are, but rather merely determining what the "tradition" is and enforcing that rule. Don't disagreements need a neutral arbiter, whether or not you think the current Court system fulfills that role?
Your statement that "Commerce is ruled by tort law" and the following paragraph show a decent understanding of that body of law, but the statement itself is plainly untrue. Commerce is ruled by Contract law, first and foremost, and US and most of the world has substantially adopted the Uniform Commercial Code for the sale of goods. Common law controls contracts for services in the US. Tort law obviously affects commerce, but its effects on commerce are negligible compared to contract law, which is at the heart of literally every transaction. I suggest you look into the UCC and common law of contracts if you want to make the argument that the marketplace does not require certainty, as there is actually much uncertainty that results from the blend of the UCC and common law, but ultimately there is a "certainty of uncertainty" that allows the system to function quite well almost exactly as you describe.
As for allowing juries to decide matters of law, they have that power already in our system if they know how to use it. In a criminal context they have an absolute right of nullification in order to reach a not-guilty verdict, and in a civil case they can do much the same thing as long as they don't explicitly say so. Most people are completely ignorant about how the system works so when they are on a jury they don't understand what they can and cannot do.
I think you've demonstrated that you've done a fair amount of research and have some interest in this topic, but you clearly lack any significant first-hand experience with the system. I think you'll find that in practice it operates much more closely to how you think it should if you were to look into it.
The real point is, the system is well-designed, it worked well for over 100 years. It's only since the people have become complacent that it has started to falter. The people should never stand for precedents that defy the constitution, but the need to clarify ambiguity and enshrine that clarification through stare decisis is a valuable feature of the system.
Commie_Meta ago
What certainty of outcomes? Stare decisis can be used to manufacture any outcome the prosecutor desires. Any controversy can be rhetorically warped until it fits a chosen precedent.
The U.S. federal courts are not neutral arbiters. A vicious cycle has taken hold. First the Progressives trick the courts into establishing a precedent that benefits them. The precedent is used to grind down the economy so that people will vote for more Progressivism out of desperation. Then the increased number of Progressive in Congress install a greater numbers of Progressive judges. Who establish even more Progressive precedents. Etc.
The challenge we face is that the Progressives don't have any goals besides power. They would rather rule in Hell than serve in Heaven. It is not a negotiation between parties of good faith who have differing opinions. It is them tricking everyone else into a series of retreats.
Contract law by itself can only get you specific performance, often too late to do any good. Tort law provides liquidated damages, incidental damages, punitive damages, etc. Contact law is the wolf - tort law is the teeth.
I have looked into it. The monstrous Wickard v. Filburn precedent rides the economy like it is a horse. Everything is interstate commerce and therefore regulated by communist central committees in Washington, D.C. They have established a nationwide real estate zoning system under the guise of protecting airplanes from danger, on the theory that the Constitution gives Congress power over the waters of the United States, and the founders simply forgot to write down the word air. An unborn baby was recently beaten to death with a baseball bat under the auspices of Roe v. Wade. The hideous Obamacare cases found that doing nothing is an event and therefore an excise tax can be levied on it, and that the District of Columbia is a state.
In criminal law the federal system has entirely ceased to function. The prosecutors write down what they wish was illegal, sprinkle the magic pixie dust of precedent over it, and the judges rubber stamp whatever indictment is placed before them. Most U.S. court criminal defendants plead guilty just to avoid the risk that a jury will find them guilty of 10,000 years of Wickard v. Filburn violations. A federal judge recently resigned in disgust over the manufacturing of fake crimes.
MaxVieuxlieu ago
It’s hard to take you seriously when you continue to conflate contract law and tort law with statements like “contract law can only get you to specific performance.” This is plainly untrue. There are remedies for breach under contract law. There are not under tort unless it is a “tortious breach” which I have seen alleged often but never proven.
Commie_Meta ago
You don't see it much because of the deterrent effect.
Suppose ABC Construction builds a house for XYZ Developers using intentionally substandard concrete. Under contract law, their liability is no greater than the cost to jack the house up and pour a new foundation. If the probability that the breach will be discovered multiplied by the cost of repairs is smaller than the cost savings, they do it and turn a profit. It's called strategic breach of contract.
But they don't do it. Because getting caught brings a blizzard of tort claims down upon them: XYZ Developers, their officers' acts and omissions insurance, their shareholders, the home owner, the home owner's insurance, the mortgage insurance, the bank, the insurance for the mortgaged-backed securities, the mortgage investors which includes every pension plan in the world, etc.
You're looking at just the first layer of law. I'm looking at the whole legal and cultural system, which in the U.S. is ruled by tort law.
Consider paying a fare to ride a bus. The buses in Somalia regularly kill people because breaching the contract of carriage is cheaper than the bus fare. The buses in the U.S. are safe and pleasant because everyone at the bus company lives in fear of the trial lawyers. Avoidance of tort liability pervades the whole system.
MaxVieuxlieu ago
"Under contract law, their liability is no greater than the cost to jack the house up and pour a new foundation."
This is simply incorrect. You're digging yourself deeper. I wasn't disagreeing with your last comment per se. But it literally is difficult to take you seriously when you double down on incorrect claims.
A "strategic breach" is not a per se "tortious breach as you imply. That's the entire basis of your argument along with your incorrect assertion regarding the damages available under contract.