Common Law and Government

[David Octavius]

We have a Common law system which is based on precedent as compared to Civil Law that spells out exactly what is lawfully or not in its statutes. So in common law (cl) law is created through interpretations or precedent of other cases to determine if certain acts are lawful or not - so consequently many laws are determined by judges decisions rather than legislature acts as in civil law (which cause some people to call them "activists judges").

My problem with this is that cl is so independent of government process that it leaves the system open and unchecked at the judiciary level. Where the congress and the president check each other (or supposed too anyways) they are none at the judiciary. So this means judicial decisions are not checked by the people through our republic - this in my view can lead us to bad times.

I always believed that judges decisions ought to be thrown into the congress of the state or national government and be debated on for either modification (if the judge ruled the law illegal) or to overrule the decision of the judge with enough votes (say 70%), so though the judge maintains the important role of testing the fitness of the act to the law, he can be overturned , just like a congress can be or the president can be checked, thus closing the system.

I believe the judiciary should retain a large measure of independence thats the heart of a free country, but they should not act as a legislature, we have a congress for that. The judiciary will still retain much power to check the government and in fact I would like the supreme court especially have the power to be more active to strike down illegal government laws or actions without a lawsuit having to be brought forth.

[WickedLou9]

statute always trumps common law, so all congress has to do is pass a specific law that negates what the judge said.

In constitutional cases this is alot harder as you would have to amend the constitution.

In most cases that shouldn't be needed though. Take for instance the Napster case. The precedant here was that in the Sony betamax case , even though there was no law that said contributory infringement of a copyright is prohibited, the judge took the existing patent law which did prohibit it, and applied it to copyright. Because of that case, napster got shut down. If after the sony betamax case congress had passed a law saying that contributory copyright infiringement can not be prohibited, the napster case doesn't happen. It would have negated the judges ruling.

[David Octavius]

Originally Posted by WickedLou9

statute always trumps common law, so all congress has to do is pass a specific law that negates what the judge said.

In constitutional cases this is alot harder as you would have to amend the constitution.

In most cases that shouldn't be needed though. Take for instance the Napster case. The precedant here was that in the Sony betamax case , even though there was no law that said contributory infringement of a copyright is prohibited, the judge took the existing patent law which did prohibit it, and applied it to copyright. Because of that case, napster got shut down. If after the sony betamax case congress had passed a law saying that contributory copyright infiringement can not be prohibited, the napster case doesn't happen. It would have negated the judges ruling.

Right but in the business of governing how often will the congress revisit such an issue especially when the court already voted a certain way - in your case that contributory copyright is prohibited - if the congress passes a bill saying it isn't surely it would be challenged right away by the RIAA knowing it will be killed in court since the precedent has been set.

In other words the courts have the final say once a decision is final but if such a decision automatically goes to the congress that has jurisdiction it can be overturned thus nullifying the decision for any future legislation passed creating that much needed check on the judiciary and making the system closed

[RMNIXON]

Originally Posted by David Octavius

I believe the judiciary should retain a large measure of independence thats the heart of a free country, but they should not act as a legislature, we have a congress for that. The judiciary will still retain much power to check the government and in fact I would like the supreme court especially have the power to be more active to strike down illegal government laws or actions without a lawsuit having to be brought forth.

I agree. But I also think Judges are too close to the profession of lawyers. Talk about conflict of interest! I think we should have a seperate educational track for Judges. Why just appoint former lawyers when they are ready to give up a practice? The courts are too much like an elite club where the common man is an outsider.

[David Octavius]

Originally Posted by RMNIXON

I agree. But I also think Judges are too close to the profession of lawyers. Talk about conflict of interest! I think we should have a seperate educational track for Judges. Why just appoint former lawyers when they are ready to give up a practice? The courts are too much like an elite club where the common man is an outsider.

Agree with that, in countries that utilize civil law, judges are separated from lawyers - trained as its own profession - for obvious reasons. We would do well to follow that example

A pipe dream of mine would be for judges to be truly impartial, neither liberal or conservative, but that will never happen and its maybe its for good reason after all, in common law society, many laws only changes as society does, and since judges are a product of society they help usher in new attitudes and definitions of law and liberty

[RMNIXON]

Why do you think they say that a man who represents himself in court has a fool for a client?

What? You are not smart enough to understand simple case law?

NO!

Because the "brotherhood" on the bench wants to hear from brother lawyer!