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This is a pretty good post so I decided to post it again
Message from discussion VOUCHERS
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More options Aug 13 2004, 7:56 am
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From:
Date: Fri, 13 Aug 2004 07:56:54 -0400
Local: Fri, Aug 13 2004 7:56 am
Subject: Re: VOUCHERS
malcolmkirkpatr...@yahoo.com (Malcolm Kirkpatrick) wrote:
:|MK. I hope others also see that jalison advances an extremely
:|undemocratic pargument. If The Law is something which binds us all
:|but which only lawyers understand, then how can non-lawyers
:|intelligently elect legislators?
Most law-makers are lawyers, always have been.
Now in continuing with this theme:
*************************************************
COURT OPINIONS:
You will generally find that the decision/opinion of a court case will
contain
FACTS What happened
RULE What the law is
ISSUE Does the law apply to these facts
HOLDING The law does or does not apply to these facts
REASONS & POLICIES [RATIONALE] Why the law does or does not apply to
these facts.
Statements made by a court that do not bear on the issues before it are
known as dicta
The average person, unless they have some legal training, or has spent a
great deal of time reading case after case after case and has developed
the recognition to be able to locate and separate the various elements do
not understand this. So they very often quote something from a court
opinion that has little or no meaning to anything.
Some courts construct their opinion in such a manner that finding the
various elements are fairly easy, however, many courts, perhaps most courts
are not so thoughtful.
BTW, a summation or a syllabus is not the law and anyone who relies on them
for their information about a case will sooner or later get burnt.
Because of the fact that most people, unless they have had some sort
of legal training of some sort do not understand a court decision or
opinion. they could be deceived into thinking that the Supreme Court did,
IN FACT, RULE, HOLD, CONCLUDE, FIND, ETC that the court
had "said" that secular humanism was a religion or that this was
a "Christian Nation."
-------------------------------------------------------------------------------------------------
To understand he meaning of court decisions, one has to have some
understanding of some legal language, and even more importantly what the
elements of a court decision are.
A first year law student will spend vast amounts of time reading court
decisions. Why, in large part to learn how to read and understand court
decisions. One doesn't just pick up a court decision and read it, and be
able to understand it.
Why is that? Because of the various elements that will be found in a court
decisions. Not everything one might find in a decision is important, or has
any meaning in any legal sense [or in any other sense].
People cite court decisions or opinions because they are or think they are
stating what the law is, after all such and such a court said this or that.
Therefore it is implied that this person is stating law or "the law."
Otherwise, there is no reason at all to cite a court case, because court
case are about law, nothing else.
Unfortunately, not everything that can be found in a court decision or
opinion is important, or EVEN ACCURATE, nor is it law.
Only the rule of law that was applied to decide the case and the actual
holding of a case is law.
(4). Kindly note the following:
ELEMENTS OF A COURT OPINION
++++++++++++++++++++++++++++++++++++++++++++++++++++++
(2) What elements does every intermediate appellate or
supreme court opinion contain!
Almost all published cases contain
* A detailed statement of the facts that are accepted by the court as true.
* A statement of the legal issue or issues presented by the appealing
parties for resolution.
* An answer to the issues presented for resolution--this is called the
ruling or holding (finding, judgment).
* A discussion of why the ruling was made--the court's reasoning or
rationale.
SOURCE OF INFORMATION: Legal Research Online and in the Library, First
Edition, by Attorneys Stephen Elias & Susan Levinkind, Nolo Press,
Berkeley, (August 1998) pp 7/18
------------------------------------------------------------------------------------------------
Also frequently you will find contained in the opinion
arguments of the parties
dicta, some of which may be interesting, some of which may not be
historical development of the rule of law that is being used to decide this
particular case
***IMPORTANT:***
IT IS FINE TO DISCUSS PLAINTIFF'S AND DEFENDANT'S ARGUMENTS,
INTERESTING OR NOT SO INTERESTING DICTA,
AND THE COURT'S RATIONALE FOR DECIDING THE CASE,
BUT REMEMBER, NONE OF THAT IS LAW FOR WHICH THE CASE COULD BE CITED.
Source: How To Brief A Case, The "Marsh Method" of Briefing Cases That
Saves Time and Improves Comprehension. By Professor Lucy A. Marsh
University of Denver, College of Law, Barcharts, Inc, (1995)
------------------------------------------------------------------------------------------------------------------
The elements of an *opinion/decision* are (1) the ISSUE, (2) the FACTS,
(3) the RULE OF LAW (4) the RATIONALE, (5) the HOLDING.
(2). How the Opinion Itself Is Organized
Normally, every intermediate appellate or supreme court opinion contains
four basic elements:
(1). A detailed statement of the facts that are accepted by the court as
true. These facts are taken from the lower court's determination of the
facts, unless the lower court's determinations were clearly in error. For
intermediate appellate courts, the lower court is usually the trial court.
For supreme courts, the lower court is usually the intermediate appellate
court.
(2). A statement of the legal issue or issues presented by the appealing
parties for resolution.
(3). An answer to the issues presented for resolution--this is called the
ruling or holding. [In some cases it might be called the finding or
judgment] In appeals, the court always takes some specific action. If it
agrees with the lower court's conclusions and the relief it ordered for
one or both of the parties, the lower court decision is "affirmed." If the
court disagrees with either or both of these aspects of the lower court's
decision, the decision is "reversed."
Sometimes lower court decisions are affirmed in part and reversed in
part. If the intermediate appellate or supreme court agrees substantially
with the lower court, but disagrees with some particular point, it may
modify or amend the decision. Usually, in the case of a complete or partial
reversal, the case is sent back to the lower court to take further action
consistent with the intermediate appellate or supreme court's opinion. This
is called a remand.
(4). A discussion of why the ruling was made--the court's reasoning or
rationale.
The court's reasoning is usually the longest part of the case and the
most difficult to understand, for a number of reasons:
* The legal issues are complex and require a complex chain of reasoning to
unravel.
* The court doesn't understand the legal issues but has to address them
anyway because the legal world expects it.
* The court decides the case contrary to established law and spends a lot
of time trying to explain this fact away.
* The judge doesn't know how to write.
A major part of law school training is how to analyze this element of
court opinions and apply it to other cases. This book can't replace law
school, but most researchers get the hang of legal reasoning after reading
a few dozen cases. Also, consider reading Statsky and Wernet, Case Analysis
and Fundamentals of legal Writing (3rd Ed., West Publishing Co. 1989) for
a structured introduction to case analysis.
Many court opinions present these four components--Facts, issues, decision
and reasoning--in this order. Others do not. For instance, one format used
by some courts is a summary of the issue and the decision in the first
couple of paragraphs, followed by a statement of the facts and the
reasoning.
SOURCE OF INFORMATION: Legal Research Online and in the Library, First
Edition, by Attorneys Stephen Elias & Susan Levinkind, Nolo Press,
Berkeley, (August 1998) pp 7/5-7/6, 7/18
=================================================================
DEFINITION OF SOME TERMS:
DECISION: A determination arrived at after consideration of facts, and, in
legal context, law. A popular rather than technical or legal word; a
comprehensive term having no fixed, legal meaning. It may be employed as
referring to ministerial acts as well as to those that are judicial or of
a judicial character.
A determination of a judicial or quasi judicial nature. A judgment,
decree, or order pronounced by a court in settlement of a controversy
submitted to it and by way of authoritative answer to the questions raised
before it. The term is broad enough to cover both final judgments and
interlocutory orders. And though sometimes limited to the sense of
judgment, the term is at other times understood as meaning simply the first
step leading to a judgment; or as an order for judgment. The word may also
include various rulings, as well as orders, including agency and commission
orders.
The findings of fact and conclusions of law which must be in
writing and filed with the clerk. "Decision" is not necessarily synonymous
with "opinion." A decision of the court is its judgment; the opinion is
the reasons given for that judgment, or the expression of the views of the
judge. But the two words are sometimes used interchangeably.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
OPINION: A document prepared by an attorney for his client, embodying his
understanding of the law as applicable to a state of facts submitted to
him for that purpose; e.g. an opinion of an attorney as to the
marketability of a land title as determined from a review of the abstract
of title and other public records.
The statement by a judge or court of the decision reached in regard
to a cause tried or argued before them, expounding the law as applied to
the case, and detailing the reasons upon which the judgment is based.
An expression of the reasons why a certain decision (the judgment)
was reached in a case. A majority opinion is usually written by one judge
and represents the principles of law which a majority of his colleagues on
the court deem operative in a given decision; it has more precedential
value than any of the following. A separate opinion may be written by one
or more judges in which he or they concur in or dissent from the
majority opinion. A concurring opinion agrees with the result reached by
the majority, but disagrees with the precise reasoning leading to that
result. A dissenting or minority opinion disagrees with the result reached
by the majority and thus disagrees with the reasoning and/or the principles
of law used by the majority in deciding the case. A plurality opinion is
agreed to by less than a majority as to the reasoning of the decision, but
is agreed to by a majority as to the result. A percuriam opinion is an
opinion "by the court" which expresses its decision in the case but whose
author is not identified. A memorandum opinion is a holding of the whole
court in which the opinion is very concise.
Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition,
(1891-1991) West Publishing Co. St. Paul, Minn. pp 753-754
JUDGMENT: A sense of knowledge sufficient to comprehend nature of
transaction. An opinion or estimate. The formation of an opinion or notion
concerning some thing by exercising the mind upon it.
The official and authentic decision of a court of justice upon the
respective rights and claims of the parties to an action or suit therein
litigated and submitted to its determination. The final decision of the
court resolving the dispute and determining the rights and obligations of
the parties. The law's last word in a judicial controversy, it being the
final determination by a court of the rights of the parties upon matters
submitted to it in an action or proceeding. Conclusion of law upon facts
found or admitted by the parties or upon their default in the course of the
suit. Decision or sentence of the law, given by a court of justice or other
competent tribunal, as the result of proceedings instituted therein.
Decision or sentence of the law pronounced by the court and
entered upon its docket, minutes or record. Determination of a court of
competent jurisdiction upon matters submitted to it. Determination or
sentence of the law, pronounced by a competent judge or court, as the
result of an action or proceeding instituted in such court, affirming
that, upon the matters submitted for its decision, a legal duty or
liability does or does not exist. Term "judgment" under rules practice
includes "decree". Fed.R.Civ.P.54(a). Terms"decision" and "judgment" are
commonly used interchangeably. "Sentence" and "judgment" are synonymous in
criminal action and appeal from sentence is same as appeal from judgment.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
FINDING: The result of the deliberations of a jury. A decision upon a
question of fact or a court. reached as the result of a judicial
examination or investigation by a court, jury, referee, coroner,
etc. A recital of the facts as found. The word commonly applies to the
result reached by a judge or jury. See also Decision; Judgment.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
RULE, v. To command or require by a rule of court; as, to rule the sheriff
to return the writ, to rule the defendant to plead, to rule against an i
objection to evidence. To settle or decide a point of law arising upon a
trial, and, when it is said of a judge presiding at such a trial that he
"ruled" so and so, it is meant that he laid down, settled, or decided such
and such to be the law.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
HOLDING: The legal principle to be drawn from the opinion (decision) of the
court. Opposite of dictum (o.v.l. It may refer to a trial ruling of the
court upon evidence or other questions presented during the trial. Also,
general term for property, securities, etc. owned by person or corporation.
See also Decision; Dicta.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
HOLDING: A statement of law in a judicial opinion that is necessary to the
resolution of the legal problem presented in the case. It is contrasted
with dictum, which is a gratuitous statement of opinion in a decision not
necessary to the result in the case. (see OBITER DICTUM) William M. Wiecek
The Oxford Companion To The Supreme Court Of the United States, edited by
Kermit L. Hall, Oxford University Press, (1992) pp 405
DICTA: /dikta/ Opinions of a Judge which do not embody the resolution or
determination of the specific case before the court,. Expressions in
court's opinion which go beyond the facts before court and therefore are
individual views of author of opinion and not binding in subsequent cases
as legal precedent. See also Dictum.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
DICTUM/diktam/. A statement, remark, or observation.
Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition
(1891-1991) West's Publishing Co St Paul Minn(1991)
OBITER Lat. By the way; in passing; incidentally; collaterally.
Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition
(1891-1991) West's Publishing Co St Paul Minn (1991)
OBITER DICTUM Words of an opinion entirely unnecessary for the decision of
the case. A remark made, or opinion expressed, by a judge, in his decision
upon a cause, "by the way," that is, incidentally or collaterally, and not
directly upon the question before him, or upon a point not necessarily
involved in the determination of the cause, or introduced by way of
illustration, or analogy or argument. Such are not binding as precedent.
See Dicta; Dictum.
Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition
(1891-1991) West's Publishing Co St Paul Minn (1991)
OBITER DICTUM (Lat.., "said in passing', often simply dictum [pl. dicta],
occasionally obiter) is an assertion in the opinion that is not necessary
to the result but is merely gratuitous opinion of the judge. The difficulty
between holdings and dicta is often difficult to discern, especially in
modern cases. William M. Wiecek
The Oxford Companion To The Supreme Court Of the United States, edited by
Kermit L. Hall, Oxford University Press, (1992) pp 602.
GRATIS DICTUM; a gratuitous or voluntary representation; one which a party
is not bound to make.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
SIMPLEX DICTUM; a mere assertion; an assertion without proof: The word is
generally used as an abbreviated form of obiter dictum, "a remark by the
way;" that is, an observation or remark made by a judge In pronouncing an
opinion upon a cause, concerning some rule, principle, or application of
law, or the solution of a question suggested by the case at bar, but not
necessarily involved in the case or essential to its determination; any
statement of the law enunciated by the court merely by way of illustration,
argument. analogy, or suggestion. Statements and comments in an opinion
concerning some rule of law or legal proposition not necessarily involved
nor· essential to determination of the case in hand are obiter dicta, and
lack the force of an adjudication. Dicta are opinions Of a judge which do
not embody the resolution or determination of the court, and made without
argument, or full consideration of the point, are not the professed
deliberate determinations of the Judge himself.
Black's Law Dictionary, Abridged Sixth
Edition, Centennial Edition (1891-1991) West's Publishing Co St Paul Minn
(1991)
========================================================
TYPES OF OPINIONS:
The Types of Opinions Issued [Emphasis added]
http://academic.udayton.edu/legaled/online/class/case08.htm
Professor Byron Warnken and Professor Elizabeth Samuels
University of Baltimore School of Law
The written decision in a case is called the opinion of the court, and when
more than one judge has heard the case, the decision is usually written for
the court by one of the judges, whose name appears at the beginning of the
opinion. Separate opinions may be concurring or dissenting opinions. A
concurring opinion agrees with the disposition of the case, i.e. whether to
affirm or reverse, but differs with the majority's reasoning. If the
opinion of the court is agreed upon and joined in by a majority, it is
called the majority opinion and is binding in future cases. The existence
of one or more separate concurring opinions does not affect whether the
reasoning will be binding in subsequent cases. If there is any common
ground on which a majority agree, then, as to that position, the opinion is
a majority opinion and is the law. But when the opinion of the court is
only a plurality opinion, that is, when a majority has concurred in the
result but not in the reasoning, then the reasoning of the plurality is not
binding in future cases.
-----------------------------------------------------------------------------------
plurality opinion When no one opinion has a majority of the Justices
willing to sign on, the Court is fragmented about the legal reasoning and
the outcome of the decision. As such, the different points that Justices
want to make may be divided among different opinions rendered by the
Justices. In essence, the plurality opinion is just the one opinion that
has the most number of Justices that were willing to agree to it. It is
sometimes called the "judgment of the Court."
***********************************************************
plurality opinion: An opinion to which less than a majority agree on
the reasoning of the decision, but to which a majority agree on the result.
***********************************************************
http://olrs.ohio.gov/asp/pub_Olmstead.asp
A third part of the opinion was agreed to by only four of the nine
justices, known as a "plurality" opinion. Plurality opinions, while not
binding, can provide guidance to lower courts that are deciding similar
cases. This part of the opinion gives a suggestion as to how the four
justices would vote if another case like this one makes its way to the
Court.
*******************************************************************
CONFUSIONS CAUSED BY VARIOUS OPINIONS:
(1) In appeals, the court always takes some specific action. If it
agrees with the lower court's conclusions and the relief it ordered for
one or both of the parties, the lower court decision is "affirmed." If the
court disagrees with either or both of these aspects of the lower court's
decision, the decision is "reversed."
Sometimes lower court decisions are affirmed in part and reversed in
part. If the intermediate appellate or supreme court agrees substantially
with the lower court, but disagrees with some particular point, it may
modify or amend the decision. Usually, in the case of a complete or partial
reversal, the case is sent back to the lower court to take further action
consistent with the intermediate appellate or supreme court's opinion. This
is called a remand.
(2) (a) There are those times when yesterday's dissenting opinion becomes
tomorrows majority opinion. In fact, it can be said that anytime a case is
overturned, if there was a dissenting opinion in the original case, that
dissenting opinion in reality does directly or indirectly become the
majority opinion when the original holding is overturned.
(b) Dissenting opinions while not winning the day and not being legally
binding can still be persuasive in future arguments. They might persuade
other judges in another time and place.
(c) In Rehnquist's opinion, and don't forget this is mister ultra
conservative, mister anti church state separation speaking. In his opinion
it jars open the door for some future court to open and walk through
ruling In God we trust unconstitutional
(Rehnquist, J., dissenting) (stating that the majority's holding leads
logically to the conclusion that "In God We Trust" is an unconstitutional
affirmation of belief).
Don't forget, he said in dissent THAT THE MAJORITY'S HOLDING
(in his opinion) LEADS LOGICALLY to the conclusion that "In God We Trust"
is an unconstitutional affirmation of belief).
Thus the majority holding has, in his opinion, jarred open that door
Majority opinion, you know, the one that carried the day, the one that won.
===============================================================
The bottom line on dissents is pretty simple, if dissenting opinion is
cited in another court case it is because there is something relevant to
the current case. A dissenting opinion is an opinion that lost the day,
but that doesn't mean that every word in that opinion is false,
unimportant, meaningless.
Thee can be facts cited in the dissenting opinion that can be true. The
overall argument lost, but that doesn't make actual facts mentioned in that
dissenting opinion false. Those facts may have a relevance to the current
case.
There are certain things in the legal world that are done in certain ways
and reasons for that.
Dissenting opinions are included and left with the majority opinion
Cases that are reversed or overturned are not removed from the case
reporters, because often times the case while overturned on some points
still is law on other points, or there are points of law made in that case
that while the holding has become bad law, some of the points of law in
that case are still valid.
(3) You can have a jumble mess of opinions in a case. You can have several
judges or justices agreeing, another group agreeing in result but for
different reasons, you can have the same on the dissenting side. While the
dissenting side isn't quite an important it can get tricky by the mere fact
that a majority is formed when some of the concurring opinion combine with
one or more positions of the dissenting side.
Mitchell v Helms is a great example of this type of mess.
It's a plurality decision. Four justices have agreed with what was on its
way to be and majority opinion, except two additional justices decided to
go together and write a concurring opinion which in part agreed with SOME
of what the the four said, but also agreed with SOME of what the dissenting
side said.
Thus we have this:
The most important feature of the three opinions that were written in
Mitchell is that the concurring justices, together with the dissenters,
made up a majority of the Court. . . . Furthermore, neither the
concurring nor the dissenting justices joined in the plurality's view that
the pervasively sectarian standard is no longer good law; rather, these
five justices agreed that monetary benefits pose even greater
constitutional concerns than non-monetary benefits, and indicated that the
pervasively sectarian standard remains applicable to monetary benefits that
are given directly to religious institutions.[17] Finally, only four
justices indicated their support for vouchers; while justices O'Connor and
Breyer appear open to the concept, they would require several conditions
that are not present in any current voucher program.
By Steven K. Green, Esq. and Professor of law
------------------------------------------------------------------------------------------------
AS A RULE, MITCHELL ISN'T.
----------------------------------------------------------------------------------------------
The basic rule is more a summary of the Mitchell v. Helm (2000)
plurality and concurrence rather than a majroty rule:
1. Four Justices (Rehnquist, Scalia, Kennedy, and Thomas) take the
view that there is no Establishment Clause problem with religious institu.
tions participating in evenhanded benefit programs, so long as the
benefits are not themselves religious (i.e., so long as the benefits are
money or secular books or supplies).
2. Two Justices (O'Connor and Breyer), take the view that the
Establishment Clause
a. prohibits the provision of benefits directly to religious
institutions (such as schools) unless there's some assurance that the funds
will not be used for religious purposes. Example: A program that funds
new buildings in all universities (including religious ones), and
then lets the universities use those buildings for religious purposes::
Tilton v. Richardson, 403 U.S. 672 (1971).
b. allows the provision of benefits to religious institutions (again,
under evenhanded programs) if there is such an assurance. Exam-'
ples: Mitchell v. Helms, or a program that gives secular equipment,
such as secular books, to schools, Board of Ed. v. Allen, 392 U.S.
236 (1968).
c. probably allows evenhanded "private choice" funding programs-
in which funds go to private individuals and are then routed by
those persons to an institution of their choice---even when these
funds end up being used for religious purposes. See Mitchell v.
Helms (O'Connor, J., concurring) (dictum, but seemingly well-
considered dictum); Witters v. Washington Dept of Servs. for the
Blind (1986) (p. 871).
d. Justice O'Connor also voted to uphold the program in Rosenberger,
even though it was not a "private choice" program-religious
newspapers were directly subsidized, rather than getting funds
through the private choices of individual students-and even
though the funds were certain to be used for religious purposes.
Query how this can be reconciled with her position in Mitchell.
A note about the Lemon test: As Part IX.B. Lb (p. 724) described,
the Lemon test-announced in one of the cases in this unit (Lemon v.
Kurtzman (1971) (p. 855))-has often been characterized as the test for
Establishment Clause cases; but in practice, its components have proven so
vague that it's better seen not as a test but as a test-generating device.
In Establishment Clause contexts that are rich with Supreme Court
precedents, the abstract purpose/effect/entanglement principles often
crystallize into more precise (though still highly controversial and
somewhat vague) tests.
This is so here. Generally the funding cases have all conceded that the
programs have a secular purpose (providing children with an education),
but the questions have been whether (1) the routing of funds to a religious
use is an impermissible primary effect (or whether the primary effect of
such programs is education and educational choice generally) and (2) any
safeguards set up to prevent such routing are excessively entangling (or
whether any safeguards, if necessary, can be implimented without an undie
amount of entangelment.
SOURCE: The First Amendment, Problems, Cases and Policy Areguments. Eugene
Volokh, Professor of Law UCLA Law School, Univerity Casebook Series,
Foundation Press (2001) pp 841 -843
------------------------------------------------------------------------------------
Background:
Divertibility:
That being the ability the ability to divert funds to religious use.
The plurality (that is the four justices had no problem with that. Felt it
was just fine to use religious public funds for religious teaching, etc.
----------------------------------
[**** **** emphasis added.]
The Divertibility issue: Two justices concurred in Mitchell but disagreed
on the divertibility question. For them, diversion was not permissible and
that aid that was divertible, that is, lent itself to religious use was
improper. ****Were the plurality view to become law it would work a
significant shift in Eastablishment Clause decisions.****
SOURCE: Constitutional, Law Case Note Law Outlines, Gary Goodpaster,
Casenote Publications, (2000) page 14-5.
Note the emphasized portion.
I have posted information before that stated a plurality opinion didn't not
create law, was not binding.
-------------------------------------------
FROM AN ATTORNEY:
The effect of the different types of opinions is complicated and not
easy to sum up.
When faced with a plurality, concurrences, and dissents, the
firmest ground is that which all sides agree on. You can predict
firmly that the court will decide along those lines in the future.
Those are settled law. After that, it's counting noses. If you have a
4-2-3 breakdown (4 for the plurality, 2 for a concurrence, and 3 in
dissent) then you can predict that the common threads between the
plurality and the dissent have the support of 7 votes. A case dealing
with the same principles and slightly different key facts might put
those 7 justices on the same side of the issue. Of course, in the 4-2-3
scenario, points the concurrence and plurality agree on command six
votes, and would still prevail. But, in that breakdown, points that the
dissent and concurrence agree on command five votes, and therefore would
prevail under slightly different facts over the four-vote plurality. So
the hard part is figuring out the rules the plurality, concurrence, and
dissent establish, and discerning where they agree and where they
differ.
I have a somewhat cynical view of the law - it is what 5 justices of the
USSC say it is. The lawyer's task is to persuade whoever he's arguing
in front of that those 5 would vote his way, using what they've said
before.
So the effect of Mitchel v. Helms is to declare that that exact program
was legal. Twist the facts a bit, i.e. in the direction Justice Thomas
wants, and you lose some votes and the case goes the other way. The
justices opinions provide some guidance on how far the facts can change
before they switch votes from yea to nay. The next case tests where
those borders are between yea and nay. The law is like a wall in the
dark, and nobody knows where it is. The courts are like the rabbit in
that algebra problem, always jumping half the distance to the wall. The
rabbit never gets exactly to the wall. But with each jump (each
decision) he narrows the gray area of uncertainty. And the uncertainty
is really the dangerous part, anyway. Societies don't dysfunction just
because people break the law. They dysfunction when people don't know
what the law is.
----------------------------------------------------------
HOW CASES INTERACT OR EFFECT OTHER PREVIOUS CASES:
SHEPARD'S CITATIONS:
THE LAW IS DYNAMIC
The nature of the common law system in America is such that lawyers and
judges rely upon and cite previously decided cases to support their
arguments or opinions. That reliance upon a system of citing cases stems
from the principle of stare decisis. Stare decisis means to stand by the
precedent established in case decisions. Under the rule of stare decisis,
once a legal issue has been resolved as it applies to a particular set of
facts, a court will not reconsider that legal issue in a later
case where the factual circumstances are substantially similar.
The general rule of stare decisis, however, does not mean that courts will
always agree with, or be bound by, existing precedent. Instead of agreeing
with a case, or "following" it, courts may disagree and criticise,
question, reverse, or overrule the case. They may refuse to reach the same
result by distinguishing it as involving facts that are not substantially
similar. They may analyze the basis for precedent and reject it as having
been founded on dicta. Cases may be cited for numerous
purposes, and treatment of precedent in later opinions may range from
strong agreement to strong disagreement.
Beginning with the first time a case is cited in a subsequent decision, its
status as precedent can change. If a persuasive judge is critical of the
earlier case, that case will lose some of its value as precedent. On the
other hand, if the judge strongly supports the reasoning of the earlier
case, it will gain in precedential status. Nearly every time a case is
cited, its precedential status is affected to some degree. The precedential
status of a case can continue to evolve as a result of interpretations
given it in subsequent opinions.
Even if a case has not yet been technically overruled or reversed, its
value or relevance to your legal position may have been seriously
undermined. You need to learn about legal trends, diverging lines of
authority, and eroding precedent NOW while you can make use of this
information in formulating your legal argument. Your choice of research
techniques will determine the amount and quality of information that will
be available to you as you adopt legal positions or formulate
strategy.
USE SHEPARD'S CITATIONS TO UNDERSTAND THE STATUS OF PRECEDENT
Shepard's Citations is basically an index. It enables you to look up topics
(cases, statutes, regulations, etc.) and find out what has happened to
them.
What made Frank Shepard's concept so indispensable to the legal profession
is its built-in intelligence. Shepard's collects all the citations data you
need to validate precedent; enhances the data with attorney analysis of
every decision; flags significant decisions with letters and headnote
numbers; and pinpoints citing references that deal with specific points of
law. This information is constantly updated.
With this thorough research and analysis as your foundation, you can track
the evolving significance of precedent. Once you learn to Shepardize@, you
can fully assess the current status of any one of millions of legal
precedents to:
* Find the most persuasice aithority
* Validate your precendece as "Good Law" ans
* Determine how "good" it is (determine its actual persuasive value in this
factual context.)
ONE EXAMPLE:
Lay people do not make good "lawyers" they just don't understand enough.
Here is an example
********************************************
From:
Newsgroups: alt.atheism,alt.politics.usa.constitution,misc.education
Subject: Re: Separation of Church and State vs. Separatian of Religion and
State
Date: Sat, 12 Oct 2002 19:59:05 GMT
Bob LeChevalier <loj...@lojban.org> wrote:
:|You aren't a judge, so you don't have any chance to accept or reject
:|the citation. jalison's point is that the case could be cited.
:|Indeed it might be cited even if overturned, if it is overturned on
:|one issue while accepting other parts of the lower court ruling.
:|
:|lojbab
[I said]
Good point
School District of Grand Rapids v. Ball, 473 U.S. 373 (1985) was overruled
by Agostini v. Felton, 521 U.S. 203 (1997) but Ball's statement of general
principles and relevant tests to be used in determining what constitutes an
establishment Clause violation remains intact, remains good law.
*******************************************************
THE ABOVE ARE JUST SOME OF THE PROBLEMS AND
CONFUSIONS THAT CAN RESULT FROM TRYING
TO UNDERSTAND OPINIONS AND THEIR SIGNIFICANCE.
.
|
