Broken American Judicial system

[Kriminal99]

Here is what I don't understand. Why doesn't State Senate publish explanations of laws or comment on interpretations of law made by the judicial system.

 

I am a relatively logical and analytical person. When I study law, I am quickly able to construct a comprehensive understanding of what the laws are trying to accomplish. In law classes that I have took in the past, I was surprised to see that the majority of people are not able to deduce this overall model and therefore have a hard time interpreting the meaning of individual laws.

 

I am even more surprised to see that these people are the exact type of people likely to populate public offices tasked with interpreting and applying the law.

 

I have seen decisions made by judges that "interpreted" laws to mean the exact opposite of what the law actually means, making use of grammar ambiguities or complex abstract arguments as to why it really means the opposite of what it says.

 

Judicial nullification of law defeats the purpose of law in the first place. It's purpose is not to allow revenge against people who have wronged you, it is to prevent anything bad from happening in the first place by giving people laws that are easy to understand and making them aware of consequences if they do not follow them.

[C1ay]

In short, legislation via judicial fiat. It has been a problem for a long time.

[lawcat]

Here is what I don't understand. Why doesn't State Senate publish explanations of laws or comment on interpretations of law made by the judicial system.

 

Because we have separation of powers. Each department has it's own powers. State Senate does not have judicial powers. Interpreting what the law means is within judicial powers, and Senate's interpretation of law would come in conflict with judical powers. In the end, it would not be prudent to do so, and it is not their job.

 

I am even more surprised to see that these people are the exact type of people likely to populate public offices tasked with interpreting and applying the law.

 

You have to trust the community you live in. If you do not, your option is to find one that suits your beliefs.

 

I have seen decisions made by judges that "interpreted" laws to mean the exact opposite of what the law actually means, making use of grammar ambiguities or complex abstract arguments as to why it really means the opposite of what it says.

 

The only time a judicial decision means "exact" opposite is when the law is nullified. At all other times it is consistent with the prevailing law.

 

Judicial nullification of law defeats the purpose of law in the first place.

 

Nullifications are done very rarely, and when done care is taken that the decision does not unfairly impact the parties who relied on the overturned law.

[Kriminal99]

The seperation of powers is supposed to be that the senate makes the laws, period. Then the judicial system gets to interpret any leftover loopholes or gaps in law. They are absolutely not supposed to be able to take a perfectly legal action and stretch the law to treat it as a crime. This defeats the entire purpose of law to begin with.

 

In practice what happens is they outright nullify laws and their intended purposes using abstract arguments claimed to be interpretations of the law, ignoring the logical consequence that it renders the law or clause utterly useless.

 

It isn't necessarily obvious when they do this.

 

For example, one law in my state says

 

Don't bring weapons on school/university grounds (the university part has been repealed just recently) It defines weapons to be a number of objects, that are all obvious weapons that have no other purpose, like ninja weapons, maces or nightsticks etc. The purpose of the law is talked about in senate to be not to allow students (or anyone else) to intentionally bring weapons to school with the intention of scaring other students.

 

Things like a hammer for example, are not mentioned because they do not invoke fear in a person when seen, which again is the purpose of the law. The purpose of the law is clearly not to be to prevent access to weapons of any kind (like a tree branch or hole punch).

 

The law specifically excludes common sports equipment that might otherwise look like a weapon, like a baseball bat or hockey stick. Then it says (on the same line) that other sports equipment also receives the same protection if it is used for legitimate athletic purposes by competitors. (The example being, if a person bring's a farmer's scythe we should ask him when and where the harvesting competition is - since most people aren't to familiar with such a competition and might be scared)

 

There is not supposed to be any room for people with obvious sports equipment to be in danger of being prosecuted for bringing weapons to school to terrorize people (a felony).

 

Then begins the process of judicial nullification, seemingly started by cops who then influence their community's judicial system by trying to control votes for judge.

 

First, since "other sports equipment used for legit athletic purposes" is on the same line as baseball bats, hockey sticks,... they claim that these two well known sports implements are subject to the same restriction. Then, in awareness of the fact that any item can be used as a weapon, they begin prosecuting people who pick up or use any objects in any kind of threatening manner, even in self defense, as having brought weapons to campus.

 

The police on one campus I am familiar with are particularly atrocious, being well known for doing things like arresting student's having snowball fights for "aggravated assault".

 

So it isn't out of the ordinary for them to run around charging people with this misplaced felony in a situation where it clearly falls short of even a misdemeanor simple assault.

 

Another example is assault law in general. Many states have an "apprehension of immediate injury" type of assault where the person doesn't have to be under actual attack. For instance you walk up to someone and point a gun at them and say "Now you are going to get it". Or you posture like you are about to hit somebody. (But don't actually try so it doesn't qualify as attempted battery)

 

Apprehension is supposed to prevent someone from saying "oh I was afraid of what she/he might do" or "I didn't know what she/he might do". At that point it is up in the air what is going to happen, and the person can have no awareness of an immediate injury about to occur. How does the judicial system get around this and create a society where someone can claim assault for be looked at funny? They claim an alternate purpose for the apprehension, saying that it is there for cases where the person "isn't afraid" that they have a gun pointed at them, or that they were about to be attacked. Totally true, but does not by itself nullify the other purpose that a person can not claim assault just because they were afraid of the situation in general. Apprehension is just an all around more robust standard than fear. Instead the judicial system treats fear as a proper subset of apprehension and allows prosecution of people in any situation where they claim to be afraid.

 

So just to summarize, the law in this university campus goes from:

 

A) Don't bring obvious weapons to school that are going to terrorize people when seen, or face felony charges

to

;) Don't ever do anything remotely aggressive on campus, or face felony charges (they tried it on someone's fists once) - which low and behold is in line with the naive university community's naive beliefs

 

Assault law goes from:

 

A) Don't attack someone or make them think you are going to attack them

to

;) Don't ever make someone angry enough towards you in any way shape or form that they decide to call the police and claim they feared you.

 

By far the most obvious example is immunity from prosecution provided to people who act in self defense. This was mandated by law in my state. What does judicial system say? It's up to the trier of fact (jury) to determine if that's what happened. Thus it has to be prosecuted to determine if it was legal to be prosecuted... While this law wasn't meant to be a get out of jail free card for anyone who claims self defense, it was supposed to at least let the judge decide if the facts indicated self defense enough to just throw the case out.

[lemit]

Krim,

 

I don't see any mention of the Executive Branch. How do you see it in the scheme of things?

 

Also, arguing with Lawcat is probably not a good tactic. I have great respect for his intellect and understanding. If I had been able to afford the law schools that recruited me, I would have hoped to turn out like him.

 

Many years ago, my first editor, who was also a lawyer, explained to me that law is language, nothing more, nothing less. (He would understand that my punctuation of that sentence was intended for emphasis and to reflect spoken language.)

 

Now, having edited a few law-related books and pamphlets myself, I know that precept to be true both in general and in particular. The language of the law is very precise; its very punctuation and spacing are subject to judicial review (although the opinions in those reviews can be corrected in terms of punctuation, spelling, and minor syntactical errors).

 

So, to learn the law you must learn its language. Once you understand its language, you will understand it to be just as bone-headed as it seems now, but you will be able to see the exact qualities that make it bone-headed.

 

Please do try to learn the law and its language. Your passion is of the sort that's always needed. Good luck!

 

--lemit

 

p.s. Your particular concerns remind me of various friends and relatives who have had contact with law enforcement and have taken offense at the entire structure of the law. Are you in some trouble?

[syphrix]

You have to trust the community you live in. If you do not, your option is to find one that suits your beliefs.

 

Is this why I've heard people say the best way to limit corruption of power is to limit its jurisdiction? It seems to make sense to me.

[Kriminal99]

Krim,

 

I don't see any mention of the Executive Branch. How do you see it in the scheme of things?

 

Also, arguing with Lawcat is probably not a good tactic. I have great respect for his intellect and understanding. If I had been able to afford the law schools that recruited me, I would have hoped to turn out like him.

 

Many years ago, my first editor, who was also a lawyer, explained to me that law is language, nothing more, nothing less. (He would understand that my punctuation of that sentence was intended for emphasis and to reflect spoken language.)

 

Now, having edited a few law-related books and pamphlets myself, I know that precept to be true both in general and in particular. The language of the law is very precise; its very punctuation and spacing are subject to judicial review (although the opinions in those reviews can be corrected in terms of punctuation, spelling, and minor syntactical errors).

 

So, to learn the law you must learn its language. Once you understand its language, you will understand it to be just as bone-headed as it seems now, but you will be able to see the exact qualities that make it bone-headed.

 

Please do try to learn the law and its language. Your passion is of the sort that's always needed. Good luck!

 

--lemit

 

p.s. Your particular concerns remind me of various friends and relatives who have had contact with law enforcement and have taken offense at the entire structure of the law. Are you in some trouble?

 

 

All I know is that the executive branch grants pardons and may influence the creation of laws. Other than that I know little about how it effects the judicial process. I have heard pardons are rarely successful. I can imagine a situation where the judicial branch has completely reinterpreted a law, and the executive grants a pardon to a defendant who was adversely affected when the executive knew what the law really meant perhaps because he helped create it. I don't know how often that really happens, and would only really apply to new controversial laws.

 

If lawcat is so knowledgeable then he should win the argument by explaining away any concerns, there is no need for me to stop.

 

Besides I agree that the community involved is a concern, I just think instead of running away one might persuade one's own community to be more reasonable and influence the local judicial branch to stop nullifying the law.

 

You talk about spacing and such being subject to judicial review. But the judicial branch doesn't write the laws, and are not responsible for spacing etc in them. So it seems such rules would just be another tool to use to nullify law passed in the legislative branch. Except in my state, I have not heard of any such conventions decided.

 

I have heard it referred to as "result driven" law, meaning why create any conventions that must be followed in the future that would prevent the judicial branch from nullifying a law? In one law they might determine the spacing the format/grammar to mean one thing, and in another law they might determine it to mean the opposite. It just depends what they want to make the law mean at that moment.

 

Of course the reason that such a convention would be good is because it would allow people a way to truly understand the law if they wanted to. But this reasoning seems to be lost on my state. They just want some person to dictate the law on the spot, case by case, based on that person's interpretation of how common sense applies.

 

 

My state has relatively new open carry laws. One restriction is, you are not supposed to bring weapons to a public gathering. Some jurisdictions tried to nullify the open carry by calling everything a public gathering. A higher court stopped this. But I hope that if they hadn't, and the executive was a proponent of the new laws, that he would be open to granting pardons to people victimized by such a jurisdiction.

 

A close friend was recently accused of assault. There actually was a confrontation in which the person was not the aggressor, and actually had been assaulted by an aggressive driver. The aggressive driver called the police and made some false accusations. Because it sounded bad, the police angrily trumped up the charges. These police are hardly seasoned professionals by the way. They are notorious for trying to trump up charges perhaps to try and beef up their resume in a relatively benign jurisdiction where the worst thing to frequently occur is an intoxicated minor... maybe they even coached the person on how to alter the facts as other incidents have seemed to indicate this, considering reports of this in other incidents. They don't officially record witness/suspect statements on scene so they can change what was said later etc.

 

I was not impressed with how the situation played out against my friend. The aggressive driver's lies began to fall apart due to a security video showing what really happened. The judge threw out the serious charges except one, regarding possessing a baseball bat on school grounds. The judge had indicated he was going to throw this out, but my friend made the mistake of hiring a local lawyer that had run for judge before in this jurisdiction. Instead of doing his job and pointing out that the police never asked why my friend had the bat, or that he had it to play baseball, he argued for the law's unconstitutionality in a lower court. When the judge almost threw out the charge anyways, he desperately "whispered" loud enough for the whole court to hear (in an intimate court room) that my friend should not expect it to be thrown out. The judge no doubt took this to mean that the lawyer was sending a message that my friend had the bat as a weapon. However the lawyer also never asked why my friend had the bat, and either wanted to avoid a heavier case load, wanted to protect nullification of the baseball bat exclusion as a weapon, or wanted a chance to argue a law unconstitutional. (There was precedent for it)

 

The DA then used this as leverage to try and get my friend to accept a plea bargain for a misdemeanor. The new judge, my friend's lawyer, and the DA all seem to agree now that the weapon on school grounds law, which clearly excludes baseball bats, applies to the situation. Now my friend must weigh a relatively benign (yet unjust) plea bargain with the chance, however remote, of becoming a felon.

[lawcat]

Thanks for respect Lemit. You makde me blush.

 

Kriminal,

 

Your argument against the power of the court to nullify laws is an argument against constitution

 

1. There are (1) legislative laws, and (2) judicial laws (rules of decision, common law).

2. A court can overturn both.

3. As to judicial laws, certainly, if a court has the power to make law, then it should have a power to nullify that law. But let's presuppose that a court does not have the power to make and therefore nullify judicial laws. All we'd be left with is legislative laws.

 

4. As to legislative laws, if a court can not nullify legislative law then the court can not interpret the law any other way than what the legislation says.

 

5. If a court must interpret the law the way legislation says, then there is only legislation.

 

6. If there is only legislation, then there is no law above it; there is no constitutional law that governs legislation.

 

7. If there is no constitutional law, then there is no charter of separation of powers, checks and balances; no fundamental baseline.

 

8. If there is no fundamental baseline, then anything can be done.

 

9. If anything can be done, then the worst attrocities can be done under the guise of law.

[Kriminal99]

I have no concern with the judicial system nullifying their own law. The problem is nullification of legislation.

 

The court does not have the right to nullify legislation. Interpretation means fill in the gaps... this is the only power the judicial branch was ever supposed to have regarding interpretation. The most horrible atrocity that can occur under the guise of law is people reading the legislation, knowing what they can and can't do, and then being punished by the law anyways because the judicial branch overstepped their bounds and "interpreted" the law to make a legal act suddenly become illegal.

 

Why do you think the US holds a 4th of the worlds prisoners? Our justice system is horrible.

 

I also am not concerned with laws being declared unconstitutional. I suppose it is possible this could be exploited too, but I have not heard of this being done... I have only heard of this being used to protect citizens from overzealous or abnormal behavior in the justice system.

[C1ay]

Krim,

 

I don't see any mention of the Executive Branch. How do you see it in the scheme of things?

 

All I know is that the executive branch grants pardons and may influence the creation of laws. Other than that I know little about how it effects the judicial process.

 

All 3 branches of government play a role in the process. The Legislative branch legislates, it creates the laws by which the people must live. The Executive branch executes the laws. It is the branch that enforces them. That is why the police departments are part of the Executive branch. The Judicial branch interprets the law to make sure it is applied by the Executive branch as intended by the Legislative branch.

 

Unfortunately all 3 branches fall short of their duties and application of the law. The Legislative branch writes sloppy law that doesn't always say what it means or mean what it says. It then becomes very difficult to discern this and determine exactly what it should say or mean. To make matters worse the Executive branch and the Judicial branch have their own opinions on what they think the law should say or mean, regardless of what it actually says or means, so they frequently look for creative interpretations to effectively legislate accordingly.

 

Ultimately it is a communication failure on the part of the Legislature when it doesn't make clear exactly what it means and we are left, sometimes for centuries, trying to figure it out. Consider for example the First Amendment in the U.S. Constitution where the first clause simply states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...". The exact meaning of this has been debated by legal scholars near and far and there is still no concise consensus as to it's application. Here we do know exactly what it says but that says nothing of what it means exactly and that leaves room for the other branches to have their own opinions on what they want it to mean.

[lemit]

Thanks, C1ay, for a little reminder of what we all should have learned in the fourth or fifth grade but generally don't remember and don't care about anyway until we run into the long arm of what we think is the law but is generally a group of inadequately funded and insufficiently trained people sent out to maintain order whether or not that order is supported by law.

 

It is futile to rail against the system if we don't bother to elect people competent to do their jobs (including appointing competent judiciary). In democracies we are all responsible for the service we get from government. We should all be active in seeking not partisans but competents. Activism should not be just for the students and the retired.

 

I should know. I was politically active as a student and then didn't bother to do anything but vote until I retired.

 

--lemit

[Kriminal99]

Oh the police? I think the police can play a much larger role than they are supposed to. Truth be told some police interpret laws to mean whatever they want and then try to influence the judicial system to accept it. I agree that how much the police are kept in check by the judicial branch depends on how much citizens participate in things like voting for judge.

 

I heard recently the number of trials has declined due to plea bargains becoming more popular. As a result, prosecutors try anything that comes their way. As a result, ridiculous charges that are gross misinterpretations of the law may never even go before a judge, as a person facing a plea bargain must choose between a relative slap on the wrist vs the chance to be vindicated or severely punished. As a result, police control public perception of law.

 

Regarding the difference in community, I know one small town in which some self defense cases played out prior to the newer "hold your ground" laws being officially stated (In my state, case law always held that you weren't required to run away). These self defense laws, a built in defense to assault involving "fightin' words" etc are taken very seriously, to the point that the police dismiss your case if you acted aggressively in any way to start with and did not get seriously hurt.

 

In another community (where rich people's kids hang out at university), in the same state, you could be cursed out, insulted, and bullied by someone driving a car, and merely telling them "You better quit...." could be construed as assault by the police, the da, and perhaps even the judge.

 

The concept of "result driven law" is naive and immoral. Not only is "common sense" about what is or is not ok a local developed perception that no one simply knows a priori (especially if they did not grow up in that community) not requiring judges to follow any pattern or have any consistency in their rulings opens the door to all kinds of other corruption as well. Common sense in the first town I mentioned is that you have the right to defend yourself and even your honor (figthtin' words defense to assault) while common sense in the second is that passive aggressiveness and aggressive driving is fine all day long but the slightest amount of any other kind of aggression is not. In the same state, with the same written laws, the effective law is totally different!