"Reed R. Heustis, Jr." <Reed@ReedHeustis.com> wrote:
:|
:|"Bob LeChevalier" <lojbab@lojban.org> wrote in message
:|news:8nhj61p4jt70offe25jdh9nh5ctbalodgg@4ax.com...
:|
:|> >"The body that deliberates and enacts laws, is legislative; the body that
:|> >judges, or applies the laws to particular cases, is judicial; the body or
:|> >person who carries the laws into effect, or superintends the enforcement
:|of
:|> >them, is executive." - Noah Webster (
:|>
:|> The only problem with that definition is that
:|> The application of the laws to cases inherently creates new Law.
:|> The carrying of laws into effect inherently creates new Law.
:|
:|
:|
:|
:|Hi Bob,
:|
:|I am sorry but I do not see how the application of a law to a set of facts
:|in an individual case is akin to the creation of new Law.
We know. You have already shown that you fail to grasp this fact.
As an attorney,
Really? Wow, and you are arguing the positions you are arguing?
Did you go to "Law School" in California?
I ask that because about 4 maybe 4 years ago a women left a message in the
guest book of our web site. She identified herself as a lawyer. I emailed
her asking if she would be interested in doing any articles for the legal
side of our web site. It turned out she lived here in Virginia Beach, had
moved here from California. She was seeking a job here as a school teacher
since she was informed by the Virginia Bar Association that she would have
to enroll in Law school here before she could practice law here.
She had practiced family law in California 8 years before moving here but
the law school she had graduated from, according to her, was not acceptable
to the Virginia Bar. ( have no idea what Law School she graduated from,
only that it was in California.)
:| I
:|willing concede that judges construct "rules of interpretation" by which
:|future courts may be "guided" in their views while applying the same law to
:|a similar set of circumstances.
I have posted valid factual evidence that you elect to label "cut and
pases," as if that somehow makes them falwed or invalid, from valid legal
publications, textbooks etc that says and shows you are incorrect.
{A good many people I reply to react the same way to the evidence I post in
my rebuttals of their posts. It can be very embarrassing to be shown to be
incorrect in such a convincing manner. Many don't take it too kindly so the
"cut and Pastes" become the target.
You have yet to explain how those evidence providing posts of mine are
invalid, flawed, incorrect.
Of course you can't because they aren't incorrect, you are.
:|No two sets of circumstances are exactly
:|alike, and therefore, lawyers can argue why or why not a law should be
:|applied to their respective situation based upon the similarity or
:|dissimilarity of previous decisions; and judges will make their decisions
:|accordingly.
You have never heard of any of the following, huh?
Primary Authority
Primary Authority is any law. Examples of Primary Authority include:
Statutory Law (The legislature)
Administrative Law (Agencies)
Case Law (The Judiciary)
Secondary Authority
Anything else such as writings and commentaries about the law found in
primary sources. Secondary sources include such publications as legal
treatises, law review articles, etc.
Mandatory or persuasive authority.
Mandatory Authority
Mandatory Authorities are those, such as statutes or decisions of the
highest court of a given jurisdiction, which must be followed by all courts
within that jurisdiction.
Persuasive Authority
Persuasive authorities on the other hand, offer guidance but need not be
followed.
Source:The legal Research Manual, A Game Plan for Legal Research and
Analysis. Second Edition, Christopher G. Wren, Jill Robinson Wren, A_R
Editions Madison Wis. (1986) p 41
Fopr example a rulings of a court in one state do not have to be followed
by a court in another state
:|
:|It is true that judges' decisions can and will affect future case decisions,
:|thereby "creating" what we loosely call as "case law". But in reality these
:|decisions are merely "guides" that help lawyers and judges apply legislative
:|laws to factual situations. Even the judges themselves may overturn their
:|own previous rules of interpretation on a particular law.
:|
LAW:
That which is laid down, ordained, or established. A rule or method
according to which phenomena or actions coexist or follow each oth-
er. Law, in its generic sense, is a body of rules of action or conduct
prescribed by controlling authority, and having binding legal force. That
which must be obeyed and followed by citizens subject to sanctions or legal
consequences is a law. Law is a solemn expression of the will of the
supreme power of the State. Calif.Civil Code, § 22.
The "law" of a state is to be found in its statutory and constitutional
enactments, as interpreted by its courts, and, in absence of statute
law, in rulings of its courts (i.e. case law).
The word may mean or embrace: body of principles, standards and rules
promulgated by government constitution or constitutional provi-
sion; statute or enactment of legislative body; administrative agency rules
and regulations; judicial decisions, judgments or decrees; municipal
ordinances; or, long established local custom which has the force of law.
With reference to its origin, "law" is derived either from judicial
precedents, from legislation, or from custom.
SOURCE OF INFORMATION: Black's Law Dictionary, abridged Sixth
Edition, Centennial Edition (1891-1991) West Publishing, St paul
Minn, (1991) pp 612)
********************************************************************************
If you are really a lawyer, which based on your posts does a really good
job of hiding ghat fact, you would know what Shepardize means, now wouldn't
you?
How To Shepardize
http://www.lectlaw.com/files/lwr17.htm
[EXCERPT]
INTRODUCTION
Try to imagine the impact of the millions of cases decided in this
country over the past 200 years. Because the principle of stare decisis
(to adhere to or abide by past decisions) forms the basis for our legal
system, every legal decision has potential precedential value. For
example, some cases are followed as precedent; i.e., they are"good
law,"while others can no longer be used to support future decisions and
are considered "bad law." As a legal researcher, you must be aware of
both types of decisions. Yet how could you possibly remember-or even
find out-what happened to each and every case?
Thanks to Frank Shepard, that is not necessary. In the early 1870's, he
realized the necessity for tracking the discussion of principles of law
in court opinions, and also tracking the history of these opinions. He
devised a method for extracting this information from published opinions
and indexing it for the benefit of legal researchers. So, you don't need
to rely on your memory; you can rely on the information compiled in
Shepard's Citations.
First printed in 1873, Shepard's Citations has evolved into a vitally
important method of tracking legal information.Today, the company named
for Frank Shepard continues working to fulfill his vision. Shepard's
collects all of the legal data necessary for a legal researcher to:
* (1) Determine whether your case has continued precedential value
through the history letters assigned by the company's legal editors;
* (2) evaluate and analyze significant decisions by reference to
treatment letters, which indicate what other judges have written about
your case; and
* (3) trace the discussion of specific points of law or fact through the
use of headnote numbers.
DEFINITIONS
To understand Shepard's Citations, it helps to review the meanings of
the following common legal terms as they apply to Citations.
CASE, CITATION, CITATION SUMMARY, CITATOR, CITE, COMMON LAW, LEGAL
AUTHORITY, PRECEDENT, REPORTER, SHEPARDIZE, STARE DECISIS
------------------------------------------------------------------------
CASE: This is an ambiguous term,with two or more distinct meanings.
First,the term generally refers to a legal action litigated between
opposing parties, e.g.,Mr. Smith and Ms. Jones. That "case"starts in a
trial court,before a judge, and where required or requested, a jury.
Following the outcome of the trial between Smith and Jones, the case may
be heard by a court of appeals, a higher state appellate court,or even
by the U.S. Supreme Court. As it progresses through the various courts,
that litigation may collectively be referred to as the case of Smith v.
Jones.
The term"case"is also used to mean a single opinion written by a judge.
In that opinion the judge applies the law (i.e.,case law and statutory
law),to the facts and explains how the decision was reached. Any written
opinion, whether published in a case reporter or not,may be referred to
as a case, by its case name. Using the example above, the case name
Smith v. Jones would be used to refer to opinions written during the
course of the litigation. These "cases"may be used as precedent in
subsequent cases.
CITATION: A citation is an unambiguous reference to a legal authority. A
citation can tell you where to find the full text of a statute, case, or
other source of legal information. EXAMPLE: Greer v. Northwestern
National Insurance Co., 109 Wash.2d 191,743 P.2d 1244 (1987) is a
citation to a case. It identifies the locations of the Greer opinion in
the Washington case reporters.
In this example, the case of Greer v. Northwestern National Insurance
Co. is located in volume 109 of Washington Reports, Second Series at
page 191. The Greer opinion is also located in volume 743 of West's
Pacific Reporter, Second Series, at page 1244. This is a parallel
citation for the Greer case. ( more information on parallel citations)
A citation can also be a reference to a statute or other legal
authority. For example, Mich.Comp. Laws S 208.23 (1995) is a citation to
a statute. It identifies the location in the Michigan Compiled Laws
where your statute can be found.
CITATION SUMMARY: Citation summaries address the relationship between a
cited case and a citing case. Included in the summary is an
identification of the point of law for which the case was cited, and
usually a quote from the citing case. Citation summaries are found in
several of the printed citators and in CD-ROM citators.
CITATOR: A case citator is a publication that reports the subsequent
litigation of a case, as well as how courts unrelated to the litigation
have commented on that case. A citator for statutes reports whether any
subsequent legislative action has affected or modified particular code
sections and lists cases citing those sections. Because Shepard's has
been producing citators for more than 100 years,"Shepard's"and
"citator"are nearly synonymous.
CITE: Used as a verb, to "cite"a case or other authority simply means to
refer to that authority. The reference can be made in a positive,
negative or neutral manner. Used as a noun,"cite"is synonymous with
"citation."
COMMON LAW: Also known as case law, common law is a set of principles
and rules of action that have been made by judges, in the course of
writing opinions in litigated matters. That is to be distinguished from
statutory law, which is law created by legislative bodies. Common law
rests on the principle of stare decisis, which means that judges will
abide by, or adhere to decided cases or precedent. Common law reflects
the principles determined by the social needs of the community, which
change over time.
LEGAL AUTHORITY: A legal authority is a case, statute, regulation,
treatise, law review article, or other legal reference source. Those
sources may be binding or persuasive to a court interpreting and
applying the law to the evidence presented by the parties to a case.
PRECEDENT: Precedent is a case opinion that provides guidance to a judge
in a subsequent case, generally either because the prior case is similar
in its facts or raises similar questions of law. Judges are usually
required to decide the cases before them on the basis of principles
established in prior cases.(See stare decisis.)
REPORTER: This term has historically meant books or other publications
that contain the actual text of cases. A reporter may also appear in
other media,such as CD-ROM.
SHEPARDIZE: To Shepardize a case or other legal authority means to use
Shepard's Citations to identify other cases and authorities that have
discussed the authority being Shepardized. By Shepardizing authorities,
you can analyze their current value as precedent.
STARE DECISIS: To stand by that which was decided;to adhere to or abide
by prior case decisions.
[END OF EXCERPT]
:|So in a nutshell, it is difficult for me to grasp how the application of the
:|laws by the judiciary "inherently creates new Law" that must be followed by
:|all future citizens.
Based on your position, why don't you explain why the Radical Religious
Right and their political toll commonly known as the Republican Party works
so hard in a effort to overturn Roe v Wade
Based o your position, it shouldn't matter one wit what Roe v Wade says
since it isn't law of the land, didn't create "abortion on demand" didn't
make abortions legal, etc., according to you.
[snip]
*****************************************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
***********************************************************************
You are invited to check out the following:
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[Below is a discussion group for the above site]
HRSepCnS · Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
.
|
