The most gullible man alive?

[SteveSy]

law is not some body of principles discoverable by experimentation and observation.

Too bad Holmes wasn't notified!

[Paul]

C'mon, stevesy. Give us the quote that you've misread this time. It's always fun to see you dig yourself deeper.

[Paul]

He's also trying to avoid discussing the Illinois law that contradict his world view.

[Famspear]

law is not some body of principles discoverable by experimentation and observation.

Too bad Holmes wasn't notified!

Actually, in fairness to Steve, some earlier legal philosophers did indeed take the view that the law was something akin to an objective reality (like the laws of physics) that existed outside of the actions of human beings and that was not created by humans.

Oliver Wendell Holmes is not generally thought of as being one of them, though. Steve is correct (in a way) that Holmes believed the law was "discoverable" -- but Holmes did not view the law as being "discoverable" the way scientists view the laws of science as being discoverable....

I am often asked, “Why do you always assume that the courts are right and the tax protesters are wrong?” Or, “Couldn’t the courts be wrong about what the Constitution means?” Those questions demonstrate that the questioner doesn’t really understand what is meant by “law” or the “rule of law.”

Law is not some kind of abstraction that floats in the air, free from any connection to people or events. “The law” is what legislatures, courts, and governments do, and the real test of what the law “is” shows in how the law is applied in actual cases.

So when lawyers talk about what “the law” is, they are talking about how a judge will rule. Not how the judge should rule, or might rule, but will rule. As Justice Oliver Wendell Holmes once explained, “the only definition of law for a lawyer’s purposes is something which the Court will enforce.” Letter to Sir Frederick Pollock, 7/3/1874. Or, more famously: “The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.” The Paths of the Law (1897).

Daniel B. Evans, The Tax Protester FAQ
http://evans-legal.com/dan/tpfaq.html

To paraphrase Holmes: The life of the law is not logic; the life of the law is experience.

Holmes uses the word "experience" to refer to how we discover and experience the law -- through the rulings of courts, etc.

[SteveSy]

Steve is also showing his poor grasp of history. Copernicus was the father of the heliocentric model of the solar system. Galileo was merely a public and vocal supporter of that theory. Nor did Galileo invent the telescope, as many wrongly think. A Dutchman named Hans Lippershey did.

Strawman alert!

I never said Galileo "was the father of the heliocentric model of the solar system". Nor did I hint at anything like it. The context I used was that Galileo was prosecuted and criticized for expressing his views contrary to the legal authority on the matter. Everyone who mattered disagreed with him. It was well established that his theories were reviewed and found to be frivolous, or heresy as they used to say. Galileo was more than just a public vocal supporter by the way, he proved the theory to be valid. He didn't just read a book.

Holmes uses the word "experience" to refer to how we discover and experience the law -- through the rulings of courts, etc.

Or just make up laws as you go that happen to further your own narcissistic agenda and pretend that you, with an almost god like ability, discovered it, as Holmes often did. He is the embodiment of everything that is wrong with the judiciary today. Many of his lengthy, practically indecipherable, ramblings remind me a lot of what you'll find in sovereign TP arguments. Just my two cents....

[Famspear]

Holmes uses the word "experience" to refer to how we discover and experience the law -- through the rulings of courts, etc.

Or just make up laws as you go that happen to further your own narcissistic agenda and pretend that you, with an almost god like ability, discovered it, as Holmes often did. He is the embodiment of everything that is wrong with the judiciary today. Many of his lengthy, practically indecipherable, ramblings remind me a lot of what you'll find in sovereign TP arguments. Just my two cents....

Well, Steve, I guess Oliver Wendell Holmes was just deciding the law for himself -- that was his right. Right? That's what you once said about yourself -- you, Steve, decide the law for yourself, it's your right. You and Oliver Wendell Holmes......

[SteveSy]

Holmes uses the word "experience" to refer to how we discover and experience the law -- through the rulings of courts, etc.

Or just make up laws as you go that happen to further your own narcissistic agenda and pretend that you, with an almost god like ability, discovered it, as Holmes often did. He is the embodiment of everything that is wrong with the judiciary today. Many of his lengthy, practically indecipherable, ramblings remind me a lot of what you'll find in sovereign TP arguments. Just my two cents....

Well, Steve, I guess Oliver Wendell Holmes was just deciding the law for himself -- that was his right. Right? That's what you once said about yourself -- you, Steve, decide the law for yourself, it's your right. You and Oliver Wendell Holmes......

The difference being of course is when I decide the law I'm deciding what it means to me and only me, and when he did it, it applied to everyone. More importantly, I'm not interpreting the law based on my opinion of social fairness aka legal realism, which is wholly subjective. Instead I take a formalist view.

[Famspear]

The difference being of course is when I decide the law I'm deciding what it means to me and only me, and when he did it, it applied to everyone.

There's another difference: When you, Steve, decide what the law means to you and only you, your decision carries little significance. When I, Famspear, decide what the law means to me and only me, that decision carries little significance. When a sitting federal judge decides what the law really is -- in an actual case or controversy, that ruling is authoritative under the legal system that we have. And the rulings by judges in actual cases as to what the law is apply to everyone - including SteveSy and Famspear - regardless of how we personally feel about the logic, or the wisdom, or even the validity of those decisions.

In other words, not only did Holmes' decisions "apply" to everyone, they were authoritative as to everyone.

[SteveSy]

The difference being of course is when I decide the law I'm deciding what it means to me and only me, and when he did it, it applied to everyone.

There's another difference: When you, Steve, decide what the law means to you and only you, your decision carries little significance. When I, Famspear, decide what the law means to me and only me, that decision carries little significance.

Agreed

When a sitting federal judge decides what the law really is -- in an actual case or controversy, that ruling is authoritative under the legal system that we have. And the rulings by judges in actual cases as to what the law is apply to everyone - including SteveSy and Famspear - regardless of how we personally feel about the logic, or the wisdom, or even the validity of those decisions.

I think I said that in so many words above, didn't I? When the Church authorities made a ruling it applied to everyone at the time, even when they claimed the Earth was the center of the universe. Just because they authority has made a declaration doesn't means its right, it just means they're the authority and their opinion is the only one that they will accept.

[Famspear]

I think I said that in so many words above, didn't I?

Yes, you did. (Sorry, I was still editing when you responded.)

[Paul]

How can you decide the law for yourself and not be deciding what applies to everyone? The law applies to everyone. So your decision either applies to everyone or it is nothing but daydreaming. Grow up and get out of your fantasy world, stevesy.

[SteveSy]

How can you decide the law for yourself and not be deciding what applies to everyone? The law applies to everyone. So your decision either applies to everyone or it is nothing but daydreaming. Grow up and get out of your fantasy world, stevesy.

You're so anal sometimes Paul. I have no authority to apply it to anyone else other than myself. I can decide what it means to me, that doesn't mean that when I get in front of a judge in his court room he's going to agree with me. Nor does it mean he will apply the law as I saw it. It's his court room not mine. He could be as wrong as could be, it won't matter, he has the final say within his domain.

What you, and many others like you, need to do is stop placing judges in the category of deities. It's fine to believe someone will have to accept their version of the law if they want to avoid punishment. It's not fine to believe they're right just because they say they are....they're frigging people just like anyone else. A federal judge can not be an expert on every aspect of the law. Most, and I mean 99.999%, have never even taken the time validate the cases they cite in support of their opinions. They don't know the legislative history, they don't research their opinions outside of simply looking at previously held positions offered by past courts. In fact they couldn't care less, people in front of them are just another case number and the quicker they can get rid of you off of their docket the better.

Just because everyone that argues something to authority loses doesn't mean the argument is invalid. It simply means that your argument will not win if you're arguing it to them. This applies to all people in authority. In the end though, they are just people. Galileo is a perfect example of how ridiculously wrong authority can be at times and no matter how many facts prove you're right they're not going to change their mind. If its contrary to the their beliefs and the system they're apart of you're out of luck.

[.]

placing judges in the category of deities

Nobody thinks that judges are some sort of deity. We just understand reality.

[SteveSy]

placing judges in the category of deities

Nobody thinks that judges are some sort of deity. We just understand reality.

Sure you do...it's whatever a judge tells you it is.

[Judge Roy Bean]

A federal judge can not be an expert on every aspect of the law. Most, and I mean 99.999%, have never even taken the time validate the cases they cite in support of their opinions. They don't know the legislative history, they don't research their opinions outside of simply looking at previously held positions offered by past courts. In fact they couldn't care less, people in front of them are just another case number and the quicker they can get rid of you off of their docket the better.

What a steaming load of BS, even for you.

[Prof]

A federal judge can not be an expert on every aspect of the law. Most, and I mean 99.999%, have never even taken the time validate the cases they cite in support of their opinions. They don't know the legislative history, they don't research their opinions outside of simply looking at previously held positions offered by past courts. In fact they couldn't care less, people in front of them are just another case number and the quicker they can get rid of you off of their docket the better.

What a steaming load of BS, even for you.

What he said.

You simply do not understand the process at all.

Let's look at sources of authority, binding on judges.

1. Prior decisions of the Circuit Courts are binding on the District Courts in that Circuit. Prior opinions of the Supreme Court are binding on the Circuits and all District Courts. Prior opinions of the Appellate or Supreme Courts of the States are binding on the District Courts sitting in diversity. This is called stare decisis, and is the foundation of the common law.

2. Trial courts are bound by statutes and may only interpret or find statutes unconstitutional. A statute that is clear on its face and not consitutionally defective is binding. If an appellate court has ruled that a statute is consititutional, that ruling is binding on lower courts.

3. Rarely is legislative history authoritative. Even the Supreme Court has held that clear statutes are not subject to analysis based upon legislative history.

Now, as to your BS about "research:" Federal trial and appellate courts are very much research institutions. Many opinions are published and areoften subject to intense review in the legal press. State trial courts are not; most do not have full-time law clerks. All State level courts of appeal are research intensive. That is all those folks do.

Even in state trial courts, lawyers file or are requested by the courts to file briefs in support of legal propositions/positions. Lawyers frequently take advantage of this opportunity to do research to support their client's positions.

As JRB said, even for you, your comments are a steaming pile.

[SteveSy]

You simply do not understand the process at all.

Let's look at sources of authority, binding on judges.

1. Prior decisions of the Circuit Courts are binding on the District Courts in that Circuit. Prior opinions of the Supreme Court are binding on the Circuits and all District Courts. Prior opinions of the Appellate or Supreme Courts of the States are binding on the District Courts sitting in diversity. This is called stare decisis, and is the foundation of the common law.

Of course let's forget about all the cases where there is a serious conflict in opinion from district to district. Let's also forget about all the certiorari denied by the Supreme Court even when there is a clear conflict in courts. Let's also forget about opinions from the lower courts that quote Supreme Court decisions to support their position and then another court uses the same decision to support almost the exact opposite thing.

2. Trial courts are bound by statutes and may only interpret or find statutes unconstitutional. A statute that is clear on its face and not consitutionally defective is binding. If an appellate court has ruled that a statute is consititutional, that ruling is binding on lower courts.

Ok

3. Rarely is legislative history authoritative. Even the Supreme Court has held that clear statutes are not subject to analysis based upon legislative history.

Cite that case please....I'll then cite one saying the exact opposite. I have a sneaky suspicion that you used the word "clear" for a very good reason.

Now, as to your BS about "research:" Federal trial and appellate courts are very much research institutions. Many opinions are published and areoften subject to intense review in the legal press. State trial courts are not; most do not have full-time law clerks. All State level courts of appeal are research intensive. That is all those folks do.

Then please explain how so much BS ends up being in opinions?

I'll chalk the outcomes up to "selective research" in a lot of cases. I've read my share of cases and I've seen first hand how they differ in opinion from district to district on issues. You're trying to give the impression that the federal courts are almost an icon of perfection, it's laughable. The courts are filled with judges that attempt to legislate from the bench so often its difficult at best to even know what one court will say over another.

Even in state trial courts, lawyers file or are requested by the courts to file briefs in support of legal propositions/positions. Lawyers frequently take advantage of this opportunity to do research to support their client's positions.

And exactly what are those briefs mostly filled with to support their position when it relates to a statute....gee a crap load of court cases?

As JRB said, even for you, your comments are a steaming pile.

I think yours is a bit bigger...just my opinion of course.

[Prof]

Just to reply quickly, regarding legislative history:

[1] More importantly, however, respondent's contentions are beside the point. Our opinion in Atascadero should have left no doubt that we will conclude Congress intended to abrogate sovereign immunity only if its intention is “unmistakably clear in the language of the statute.” Atascadero, 473 U.S., at 242, 105 S.Ct., at 3147. Lest Atascadero be thought to contain any ambiguity, we reaffirm today that in this area of the law, evidence of congressional intent must be both unequivocal and textual. Respondent's evidence is neither. In particular, we reject the approach of the Court of Appeals, according to which, “[w]hile the text of the federal legislation must bear evidence of such an intention, the legislative history may still be used as a resource in determining whether Congress' intention to lift the bar has been made sufficiently manifest.” 839 F.2d, at 128. Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress' intention is “unmistakably clear in the language of the statute,” recourse to legislative history will be unnecessary; if Congress' intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.

Dellmuth v. Muth
491 U.S. 223, 109 S.Ct. 2397 (1989).

Just one of many US S. Ct. cases saying the same thing.

The rest of your comments remain just steaming BS. Of course there are conflicts between federal district courts in the same circuit where the circuit has not spoken, just as there are conflicts between the circuits (which the Supreme Court sometimes resolves). Judges disagree or make mistakes. What of it? If the law were certain and fixed as to all matters, there wouldn't be nearly as much litigation. Litigation is sometimes, you know, not about the facts but about issues of law. Smart, learned people disagree -- and give their clients different advice and the judges sometimes come to different results. If you don't understand that sort of thing, you really are totally clueless about the law and how it functions in the English tradition.

[.]

Sure you do...it's whatever a judge tells you it is.

You finally got something right. Reality is that a decision is the law unless and until it's tipped over on appeal or by legislative action (assuming it's not a Constitutional issue.)

You like to tilt at legal windmills because you don't like the results.

The only difference between you and the moron TPs we ridicule is that you are bright enough to understand that you'll lose if you press your BS. What's not different is that you actually believe your BS.

[Judge Roy Bean]

.....
Then please explain how so much BS ends up being in opinions?

Meaning the opinions you don't agree with, I presume. Perhaps it's because the Judge or panel that wrote the opinion knows more about the law than you obviously do. And it may have something to do with the fact that the attorneys who presented their case effectively were well prepared and the other side was not. And there may have been amicus input, and so on and so on. Clue: Judges don't function in a vacuum.

.....The courts are filled with judges that attempt to legislate from the bench so often its difficult at best to even know what one court will say over another.

The only real opportunity to "legislate" from the bench comes at the level where a constitutional challenge is being made to the law, which means the vast majority of all those judges filling all those courts rarely even get the opportunity.

Yes there are probably a number of Judges who overstep the appropriate doctrinal boundaries from time to time; there are some that are famous/infamous and you'll probably get a consensus that certain districts (one in particular comes to mind - *** cough *** 9th *** cough ***) have a reputation for being, shall we say, odd? But by and large we have the best judicial system in the world. Can it be improved? Certainly - it is hopelessly bogged down in many districts, but that's a whole nudder subject.