Do they cover how to spell “plaintiffs” in first year law school?
** You repeatedly expressed disbelief that principles of law could be expressed clearly and without ambiguity. You demanded an example: it was provided.
Your complaints that we haven’t given you what we clearly have, and your attempts to assert arguments that have nothing to do with the debate at hand, are beginning to become annoying.
** Irrelevant to the debate.
** The given principle does not allow for exceptions, nor for other values to overrule it. A speech that removed the ability to choose communication or its absence contradicts the principle. There would be no cause to prevent the mere sharing of information in a less dominaneering manner.
This should be trivially obvious.
** Invalid logic. Even if the protection for commercial speech is less, it doesn’t follow that anything that imposes on commercial speech is appropriate. It must still be shown that the imposition of a burden on one type of speech is justified, and that the imposition of the same burden on other types is not.
Well, since no one ever claimed that this principle was in any way related to the DNC list, or to the original discussion (excepting only that it was part of a subtopic which you insisted upon starting), this isn’t surprising.
Pointing out your failure to appreciate an extremely basic legal concept like the standard applied on a motion for summary judgment isn’t ad hominem. Seriously, any first-year law student would know that; it’s part of the basic Civil Procedure class. **
Which is wholly irrelevant in deciding the plaintiff’s summary judgment motion. Keep your eye on the ball, sparky. **
See, this calls your law student status into even further doubt. The set of classes required of first-year law students is pretty much set in stone at every ABA-accredited law school. The courses are: Contracts I and II, Property I and II, Torts I and II, Criminal Law, Constitutional Law, Civil Procedure I and II and Legal Writing/Advocacy. The names might vary a bit from school to school, but the substance is the same. Students don’t get to take elective courses until their second and third years.
I’m not sure which “IU” your profile refers to, but this is certainly true at the Indiana University School of Law, the University of Iowa School of Law, and the University of Illinois College of Law (which adds a statutory interpretation course to the mix). The University of Idaho College of Law doesn’t say so explicity, but its course numbering makes clear that it follows the same system as other schools. **
Not for purposes of deciding a summary judgment motion it isn’t. Again, such motions are decided by construing the facts in the light most favorable to the nonmoving party. That means the FTC gets the most favorable possible interpretation on its allegations, including the 40-60% figure. **
None of which is of the remotest relevance in deciding a summary judgment motion. It might be relevant if the case goes to trial, but not at this particular stage.**
Do you not understand that there is no “record” because there has not been a trial? Summary judgment is a pretrial motion. In so moving, the plaintiffs are asking the court to say “even if every single thing the FTC claims is true, the FTC should still lose.” **
No, the appeals court will not do that, because the appeals court understands the standard for deciding a summary judgment motion, something you apparantly do not. The appeals court will do one of two things: uphold the lower court’s sustaning of the motion, or overrule the lower court and allow the trial to proceed.
It is in fact conceivable that the case could proceed to trial and the plaintiffs could establish that the FTC’s estimates are so much bunk, and that the actual reduction in calls is somewhere far south of 40%. But the court cannot make that determination at this early stage in the litigation.
Yes. I would consider a 40% reduction in telmarketing calls to be effective. Hell, I would consider a 20% reduction to be effective, just as I would consider a program causing a 20% reduction in the poverty rate to be effective, or a program causing a 20% reduction in crime to be effective, or a program reducing teen pregnancy by 20% to be effective.
Implicit in that disbelief is the notion that you could express a principle of law with perfect clarity that didn’t have awful consequences. **
What’s with the royal “we?” Are you the Queen of England now? **
Oh, but it’s terribly relevant. I’ll ask again: do you, or do you not, think your “right to communicate” language is a worthwhile change in the law? **
So is that a “yes, we could force those annoying speechmakers in the park to shut the hell up?” **
For constitutional purposes, the test for such impositions is set forth in Central Hudson. For reasons I’ve described earlier on page three, I think that test is met by the DNC list. **
Moi? Hardly. You’re the one who shot off about how you could come up with a better system than the constitution. I just asked you to give a concrete demonstration of that claim.
Just saw this on CNN.com:
** In your mind, perhaps. Not in anyone else’s.
** Irrelevant, and bringing it up again doesn’t make it any more relevant.
** Your reasoning is specious. Merely demonstrating that a particular form of speech has fewer protections than others does not lead to the conclusion that a particular form of restraint on that speech is justified.
I claimed that the ambiguity inherent in the Constitution severely limits its interpretability, and that a valid law should be precise. When you challenged this, I responded with an example of a precise principle that doesn’t require intricate “interpretation” by courts: it clearly divides all cases into one of three categories. This is necessarily “better”.
It is relevant. You claimed to be able to draft a scheme that was fufilled the same function as the Constitution, but with zero ambiguity. Inherent in that claim is that your system is just as good as the status quo. You’ve dodged that issue by making the spurous claim that you were just showing an example of zero-ambiguity drafting divorced from the question of whether the drafted text was actually something you actually favored. I wish to eliminate that dodge. So now I’m asking, yet again: do you, or do you not, think your “right to communicate” language is a worthwhile change in the law? **
The test for constitutional justification of a restraint on commercial speech is different from the test for justification of a restraint on noncommercial speech. For the reasons I described earlier on page three, I think the test for a restraint on commercial speech has been met by the DNC list. Ergo, the DNC list is constitutional.
And that’s the only question the court is allowed to answer. They are there to determine constitutionality, not whether a particular measure is justified by their own moral compasses. If a law passes constitutional muster – if it meets the tests established by Supreme Court precedents – then it is justified, legally speaking, by the fact that Congress passed it. We live in a representative democracy bounded only by constitutional rules; if the constitution doesn’t forbid it, then whatever Congress wishes to do is fair game.
If you think the law is bad policy, or even inconsistent and nonsensical policy, fine. Write your congressman to change it. But unless you can show an actual constitutional violation, the law is in fact valid. **
Until, of course, you look at how it actually operates in real-world situations. Taking your rule extremely literally does add clarity, but at the expense of fairly absurd results when put into practice.
** The function of the Constitution is to ennumerate basic rules. Making something that does this better than the Constitution doesn’t require that it encode the same rules – and since my complaint was with the rules themeslves, expecting the sample statement to be consistent with those rules is ludicrous.
An illogical and nonsensical law cannot be reasonably applied. What more needs to be said?
By what standard are those results absurd? A precise description of the standard you’re applying necessarily meets my conditions – if you can’t describe the standard, you have no way to make such claims, and your statements are invalid. If you can, you admit I’m correct.
I win, either way.
I’m not expecting you to encode the same rules as the Constitution, but I do expect that whatever rules you do encode to actually work in the real world in a manner that most reasonable people would deem acceptable. I think it reasonably clear that your rules, read literally, would require the legal protection of things like incitement to riot, libel and slander, and the disclosure of sensitive intellingence information.
I think that is wholly unacceptable. I would rather take the status quo with all its ambiguity than a crystal clear system that mandates such results. **
You assume an imprecise standard is worthless. It is not. I think free speech is generally more important than security concerns, but recognize that in extreme cases security might trump free speech. Can I draw a precise, bright line to show where exactly that tipping point lies? No, and that’s OK. There is a measure of subjective judgment at play there, as there is in all such things, and that is perfectly acceptable.
** Quit trying to weasel out of one discussion and into another! I bet you’d like to displace the conversation onto another topic, but it’s not going to happen.
The principle wasn’t being offered as one I would necessarily apply to actual law, but was merely an example of an ambiguity-free principle such as law should be.
Secondly, how do we determine who the “reasonable people” are? What standard do these people use to determine what is “acceptable”?
Your arguments contain assumptions which you can’t even bring into your consciousness, much less justify to others.
** Quite right. That principle deals with one and only one value: the right to communication. Denying someone the ability to communicate because you don’t like the content of what they say is violating that right.
If we accept that some things should trump the right to communicate, what are those things? What standards do we use to identify them? And more to the point, why can’t we explicitly describe these standards in law, so that it’s clear to everyone when speech can and cannot be imposed upon? Why do we need to rely on things like “precedent”, which is nothing more than the arbitrary conclusions of past courts acting without basis in law?
Again, THIS IS IRRELEVANT. There’s no reason we can’t have a crystal clear system that describes what we will and will not accept – except that the current system’s malleability is useful to the corrupt and power-loving.
** An imprecise standard cannot be applied, as it is not algorithmic. A standard that can’t be applied is necessarily worthless.
No, it is not. Equal justice under the law is not possible when what the law actually says is subject to subjective opinion.
There IS a bright line standard in your mind. It is what causes you to find some actions objectionable and other acceptable. Your lack of insight cripples you – but instead of acknowledging and trying to change this, you insist that being crippled is a perfectly acceptable way to be. You sicken me.
What you are asking here is why we have the principle of stare decisis. Here’s an essay on the subject (It’s a Canadian article, but the principle is universal):
http://legalresearch.org/docs/perell.html#Introduction
To be sure, stare decisis often results in bad judges using precedent to justify bad rulings (ironically, the Denver case is a good example of this), but I think the results would be far worse if it were eliminated.
It would be more just to take care that an improper precedent wasn’t set in the first place.
Now: why is the Denver case an example of a bad ruling? I’d actually rather like to hear your reasoning on this matter.
In my eyes, the DNC list should allow people to block calls from any organization or class of organization they wish. If the DNC list is intended to permit people to choose not to receive unwanted telephone communications, why should political and charitable organizations be exempt? The government isn’t restricting who they can call – the people are.
Why are the laws that permit people to block any type of mail acceptable, but not laws that permit the blocking of any type of phone call?
Well that would be up to judges, wouldn’t it? So which is the better way to minimize errant rulings - require consistency, or simply let every individual judge do as he pleases? I would say the former, i.e. stare decisis.
That’s what this whole thread was about; he relies too much on one case as precedent while ignoring a large body of other cases that contradict it.
What, are we back to square one now? Once again, were the DNC list to include political and charitable organizations, there would be an issue of constitutionality. This is because pure speech is more protected than commercial speech. It’s a Catch-22 for the FTC, because including pure speech would raise First Amendment issues, but at the same time, this bonehead Denver judge is trying to say that leaving it out is a First Amendment issue. Which leaves the government damned if they do and damned if they don’t.
This is just an analogy, so don’t get spooked, O.K.? - It’s like having one law that says it’s illegal to stop at a stop sign, and another law that says you’re required to stop at a stop sign.
** Ah, but the current system is a mixture of both, isn’t it?
Wouldn’t it be better to ensure that precedent-setting cases were decided carefully and with full adherence to the spirit of the law, rather than letting the first judge do what he likes and then mindlessly following his decision?
** So is that right, or wrong? Perhaps the precedents contradicted the spirit of the law, and should have been ignored.
** But the people are free not to listen to pure speech. The government isn’t actually putting any restrictions on the speakers directly. It’s not forcing commercial telemarketers to call only between the hours of 9 and 5. It’s giving the people the ability to choose what not to receive.
The people can exert powers the government may not, especially when making decisions that affect only themselves. Whether to sign up for the list is such a decision.
I fail to understand how permitting people to refuse certain communications violates anyone’s freedom of speech.
You were asked how you would craft an ambiguity-free set of rules that dealt with the same general topic area as the first amendment’s free speech clause. That request clearly asks you to set forth rules that you consider appropriate for actual implementation. Clearly you are not up to that task. **
For the simple reason that every possible circumstance can’t be anticipated, nor can every possible factor in balancing competing values be enumerated and assigned weight.
If you feel otherwise, I refer you to my earlier challenge, to which you have only responded halfway. Come up with a rule or set of rules that governs the same general topic area as the first amendment, including any exceptions. If there is a balancing test, list all the factors and assign them weights. Design it to be read with the same mechanical precision as a computer program.
I guarantee that I will be able to find situations that your formulation handles poorly – situations that most folks, in their terribly subjective judgment, would find the application of your rule to be morally repugnant. **
Slow down, sparky.
I’m a pretty harsh critics of the courts more often than not, as a simple perusal of my posts would show. But it’s absurd to suggest that precedent is wholly “arbitrary” and “without basis in law.” That suggestion belies an ignorance of the history and evolution of the common law.
The roots of the English common law, upon which the American court system is based, extends back to a time when there wasn’t much in the way of statutes setting forth rules of decision for various situations. But conflicts nonetheless existed, and had to be resolved one way or another.
If I, peasant Dewey, accidentally rode a horse over a pig belonging to you, peasant TVAA, we’d have a dispute. Having a third party hear us out and render a binding decision is better than the way it would otherwise be done (i.e., we fight it out). So we go to court. And the court has to come up with a way to resolve our dispute (by, say, forcing me to comp you based on what you could have sold the pig for on the day of the accident). So they do. I grudgingly pay you for the pig. All is well.
Well, say a little later on in our happy village a sheep gets squashed when a cart topples over. The sheep owner will naturally expect results essentially the same as what you got in your pig suit. And thus stare decisis is born. **
Again: I’m eager to hear the details of your proposed system. It’s pretty goddamned easy to say “we can remake the world in a better way,” but quite a bit harder to actually spell out a plan for doing so. **
Imprecise standards are applied every day, and not just in a legal context. Consider Ms. Undhow, a CPA. In the course of an audit, she has to determine what contingent items need to appear on the financial statements. The standard for determining that issue is to ask whether the items are both “probable” (likely to actually happen) and “estimable” (possible to assign a dollar value). There is considerable room for professional judgment in making that determination. It is a standard that is not totally precise, but nonetheless useful and capable of application. **
Again, the law strives for balance. It can’t be wholly subjective, of course, but a little subjectivity at the margins is a good thing – “play in the joints,” to use one famous description.
Judges, for example, are given a range of years in sentencing convicted defendants. Whether a given defendant gets a sentence on the high end or low end of that range will depend in part on the judge’s subjective evaluation of the defendant’s character, likelihood of recidivism, etc, etc, etc. And that’s a good thing. It would be absurd to try to spell out in concrete detail how to make those types of judgments. **
Your effort at mindreading notwithstanding, I do not have a bright line in mind. Balancing competing values involves the evaulation of innumerable individual factors, some of which can’t even really be described – call it the “gut reaction” factor. We can increase or decrease the subjectivity in such balancing tests, but we can’t make them 100% subjectivity-free. **
If you’d like to take this to the Pit, I will happily follow. Otherwise, stick to the debate at hand.
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I’m eager to hear your proposed mechanism for ensuring that all appellate cases (and all appellate cases set precedent) are “decided carefully and with full adherence to the spirit of the law,” outside of the things we have in place now (lifetime tenure to prevent political bias, a code of judicial ethics, requiring judges to swear oaths of office, etc, etc).
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Of course, a bad decision can be overturned by a court of like authority. Brown v. Board effectively overturned Plessy v. Ferguson[, for example. Stare decisis is an important cautionary principle, but it isn’t sacrosanct. **
The one thing a trial court can’t do is outright ignore precedent; to do so would only be to waste his or her time, as he would be swiftly reversed on appeal. A trial court judge can try to distinguish his particular case’s facts from the facts of prior cases, but he cannot simply ignore those cases outright.
Not really. As Dewey pointed out, a judge can never simply do as he pleases and ignore precedent (not that they never do, but they’re not supposed to). If a previous decision is poor, it can be overturned, but not simply on a whim; the judge would have to have a good reason.
What is it that you are proposing, TVAA? That already IS done, for the most part. But judges are human beings, just like you and me, and they do make mistakes. It would be “better” if I could shit gold, but I can’t. I can definitely see your point that poor decisions often come about by relying on bogus precedent; I just don’t understand what alternative you are proposing.
I already said that in my opinion, scrapping stare decisis wouldn’t be a good idea. Both Dewey and I explained why in quite a bit of detail. You obviously disagree, so I don’t know what else to say.
By the way, a ruling that contradicts the “spirit of the law” is not necessarily allowed to stand, as you seem to think it is. Legislative intent is a crucial element of a decision, and a ruling that blatantly ignored legislative intent would most likely end up being overturned.
Sorry, I don’t follow you.
Well then I find it ironic that you vehemently support a court decision (the Denver case) that prevents us from doing so.
** Why not? If precedent is all there is, there’s no principle formally enshrined in law to guide them. Why should they follow precedent without examining whether that precedent is logically or ethically valid?
** A system that doesn’t rely on precedent. When a gap in the law is discovered, effort is made to extend the law instead of glossing over the gap.
** Point acknowledged; nevertheless, I suspect this merely serves as a way to avoid throwing out poorly-written laws.
I strongly disagree that the government should decide what people should be able to screen out. If the government is going to have this list at all, it should allow people to block whoever and whatever they like. Targeting groups merely for the content of their message is not reasonable.