Naw, political parties were very much forseen by the founding fathers. Many wanted to have official parties, but George Washington believed that they would lead to a disfunctional government and tried to have them banned. There was a compromise on there being no law against parties, but none were officially formed until Washington retired.
Hell, Washington's final speech as president was against the evils of partisan governing. Guy had forsight like a mutherfucker.
Battlenet ID: MildC#11186 - If I'm in the game, send me an invite at anytime and I'll play.
I'd argue that Washington probably fucked up things worse by making sure things weren't built around the idea that people might decide to be partisan assholes. People are going to take sides on things, so the best course of action would have been making sure that the partisan assholes couldn't drag things to a standstill while they threw temper tantrums.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
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HacksawJ. Duggan Esq.Wrestler at LawRegistered Userregular
We may just need to accept that our voting system will never be good enough, because we have entrusted our national elections to the several states, instead of making the procedure for voting uniform. I'd love to see an amendment to address this issue (which is the real problem) but good luck getting the states to approve it!
Wouldn't it be simpler to over rule them on the federal level?
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
I agree with that. That's not saying there aren't politics at play, but it's not like one group of Justices refuses completely to work with the other...
Most people in the House and Senate don't even talk to each other anymore. Next time you swing through D.C., contact your Member's office for a Capitol tour and take a few minutes to sit in the gallery over the Senate chamber. It's frequently a tomb in there; occasionally someone heads down to read a speech, but he's giving it to a conspicuously empty chamber for the benefit of the CSPAN cameras.
As much as people rightfully give Clarence Thomas shit for his refusal to engage during oral arguments, if one accepts the aphorism that 90% of life is just showing up, he's still doing about 85% more than your Representative most days. :?
That's been going on for years, and it actually isn't as ugly or stupid as it appears.
Congressmen making those speeches are actually just using the chambers as a backdrop for video that they send to local news organizations (and these days social media and Internet outlets). It's not meant to be a speech to a group and never has been. It's just nicer to give the speech in the Senate or House chambers visually than in their office.
Not having the other members show up for those is no more odd than them not showing up for photo shoots or campaign videos.
I am quite aware it's been going on for years, but I disagree that it isn't stupid. I am not alone among those who follow or have worked with the institution to think so; Tom Daschle's bemoaned the lack of direct member-to-member communication in chamber for a while, and I believe his criticisms of the speech-to-the-empty-chamber culture that CSPAN has engendered figures prominently in his new book (which I've not yet had time to read). And unlike me, Daschle was in Washington long enough to remember when people actually did go down to the Senate to listen to each others' speeches.
That's the standard Tip and Ronnie had drinks every night bullshit that the D.C. conventional wisdom loves. It is actually a paean to an era when both the Democrats and Republicans came together over sharing the filthy corporate lucre, bashing unions and minorities while starting dirty little foreign wars. The congenial 80s were actually a horrible time in our nation's governance, and the sad state of our nation is a direct result of those congenial times.
In reality, the two parties should be at each other's throats. They have diametrically opposed - theoretically at least - views on what the priorities of the nation should be and who the government should work to benefit. I don't actually want my representatives getting buddy-buddy with each other, when that friendliness just leads to decades of policies that gradually undermine the well being of the majority of American citizens.
You really think that what we have now doesn't undermine the well being of the majority of American citizens?
Not as much as it did then. America is still recovering from that poisonous alliance made under Reagan's regime.
Not to mention that the founding fathers famously failed to account for political parties in the system they developed. . .
The Founding Fathers weren't deities or oracles. Like any country America needed to evolve over time and it's not like they didn't create a system with horrible flaws (slavery being illegal, women not being able to vote etc).
Or to put it more succinctly: the Constitution is not a suicide pact.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
I'm sorry, what's the glorious Washingtonian alternative to partisan democracy here?
Well, the idea is a bit optimistic and doesn't work in reality, but it's to have each political leader base each descision individually and not along party lines.
So in modern terms, say you have a politician who is really conservative on gun control, but they see the value in scientific research, they would vote against gun control and for scientific research. But a party would have people vote along those lines, even if the individual doesn't agree with the party.
The Sandy relief bill as a recent example of people voting along party lines, even though some members of the GOP wanted to vote on it based on their personal values.
Not saying Washington was right, but he did see this problem coming. His issue was that he was too idealistic for reality and didn't account for the Greater Political Fuckwad Theory.
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party whips in the US context are far weaker than in westminster systems
what you have arises from individual deals and horse-trading within the legislatures themselves - by voting party-line, people trade their vote on scientific research to obtain votes on gun control. but US whips cannot expel recalcitrant members wholly from the administration, since they cannot be in the administration to begin with, and the coat-tail effect is long-since diminished.
you get parties when people do have priorities amongst their list of policy ideas, not when they don't
US parties were created precisely because politicians cared fervently about the way the French revolution was unfolding, far more than they cared about their individual disputes with each other
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AManFromEarthLet's get to twerk!The King in the SwampRegistered Userregular
American party divisions were already extant in the Constitutional convention and then polarized by the animosity between Jefferson and Adams. Washington was a bit silly in thinking that party politics wouldn't become the norm, since they already existed.
I suppose one could envision a political system where anti-trust laws extended to political parties. So politicians would get in trouble if they engaged in forming coalitions, certain types of horse trading, whipping, or seniority systems.
Of course I have no idea what that would result in in practice, since I don't think it's been tried before.
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AManFromEarthLet's get to twerk!The King in the SwampRegistered Userregular
Party politics are not avoidable so long as we have these things called humans in charge of our governments.
Party politics are not avoidable so long as we have these things called humans in charge of our governments.
They are also a reflection of the fact that people have different ideas on how the world should run and organize around them. A partiless system in reality is only going to work in a one-party authoritatian government, and even in those you have formal factions that form.
I'd hazard a guess that there are actually enough black people in Mississippi that it didn't face the same issues that, say, Massachusetts faced in finding enough people in the sample to draw a conclusion. Your argument implies that Mississippi is one of those "1/4 of states" whose black population is too small to make a reliable comparison of black and white voter turnouts. Rather, I'm pretty sure that these margins of error dont apply to the statistic actually being cited. It would seem that the original point was quite valid: census figures in Mississippi, a state with a large enough black population that such statistics can be meaningful, has a higher balck voter turnout than they do white, which does call into question why the state should be subject to different rules about federal oversight than other states when it comes to voting laws, if the justification for such disparity is to prevent voter suppression of blacks in favor of whites. It isn't "case closed," but it is a valid point, and I would be more likely to accuse you and Mr. McDonald of trying to wield misleading and inapplicable data than I would Roberts.
Err
Help me follow this logic
1): A law exists making it harder to suppress black turnout
2): Therefore black turnout is higher
3): Therefore the law is not needed
I'd argue that Washington probably fucked up things worse by making sure things weren't built around the idea that people might decide to be partisan assholes. People are going to take sides on things, so the best course of action would have been making sure that the partisan assholes couldn't drag things to a standstill while they threw temper tantrums.
Getting off topic, but he did. Or more accurately the Framers did. Because while without a checks and balances system Obama might be able to push his agenda more, without it Bush would have been able to get away with more and the Republicans would likely now control government. Republicans control the House. In a Westminster style government that would mean they control government unilaterally. They're controlled the House all but 4 years since 1994.
I'd hazard a guess that there are actually enough black people in Mississippi that it didn't face the same issues that, say, Massachusetts faced in finding enough people in the sample to draw a conclusion. Your argument implies that Mississippi is one of those "1/4 of states" whose black population is too small to make a reliable comparison of black and white voter turnouts. Rather, I'm pretty sure that these margins of error dont apply to the statistic actually being cited. It would seem that the original point was quite valid: census figures in Mississippi, a state with a large enough black population that such statistics can be meaningful, has a higher balck voter turnout than they do white, which does call into question why the state should be subject to different rules about federal oversight than other states when it comes to voting laws, if the justification for such disparity is to prevent voter suppression of blacks in favor of whites. It isn't "case closed," but it is a valid point, and I would be more likely to accuse you and Mr. McDonald of trying to wield misleading and inapplicable data than I would Roberts.
Err
Help me follow this logic
1): A law exists making it harder to suppress black turnout
2): Therefore black turnout is higher
3): Therefore the law is not needed
What?
It's the "we don't need seat belts anymore because driving fatalities have gone down" argument.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
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adventfallsWhy would you wish to know?Registered Userregular
I'd hazard a guess that there are actually enough black people in Mississippi that it didn't face the same issues that, say, Massachusetts faced in finding enough people in the sample to draw a conclusion. Your argument implies that Mississippi is one of those "1/4 of states" whose black population is too small to make a reliable comparison of black and white voter turnouts. Rather, I'm pretty sure that these margins of error dont apply to the statistic actually being cited. It would seem that the original point was quite valid: census figures in Mississippi, a state with a large enough black population that such statistics can be meaningful, has a higher balck voter turnout than they do white, which does call into question why the state should be subject to different rules about federal oversight than other states when it comes to voting laws, if the justification for such disparity is to prevent voter suppression of blacks in favor of whites. It isn't "case closed," but it is a valid point, and I would be more likely to accuse you and Mr. McDonald of trying to wield misleading and inapplicable data than I would Roberts.
Err
Help me follow this logic
1): A law exists making it harder to suppress black turnout
2): Therefore black turnout is higher
3): Therefore the law is not needed
What?
It's the "we don't need seat belts anymore because driving fatalities have gone down" argument.
Sorry, no. George Washington was not particularly insightful, idealistic, or principled on the matter of political parties. He was, however, a liar, governing as a Federalist after a few years but refusing to admit it, and hypocritically (not to mention stupidly) warning people not to form political parties that already existed.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Sorry, no. George Washington was not particularly insightful, idealistic, or principled on the matter of political parties. He was, however, a liar, governing as a Federalist after a few years but refusing to admit it, and hypocritically (not to mention stupidly) warning people not to form political parties that already existed.
Battlenet ID: MildC#11186 - If I'm in the game, send me an invite at anytime and I'll play.
Sorry, no. George Washington was not particularly insightful, idealistic, or principled on the matter of political parties. He was, however, a liar, governing as a Federalist after a few years but refusing to admit it, and hypocritically (not to mention stupidly) warning people not to form political parties that already existed.
Look on the bright side, he'll save children but not the British children.
First they came for the Muslims, and we said NOT TODAY, MOTHERFUCKERS
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
But that's what just happened. 51 percent of us got together and decided that its wrong for public companies to be dishonest about the state of their company in their accounting. So we can either write a thousand page bill that covers every conceivable way that a company could do that (and that is just as impenetrable to a "layman") or we can write a law that says "it's illegal to knowingly hide the state of a public company, direct questions to the FCC"
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
But that's what just happened. 51 percent of us got together and decided that its wrong for public companies to be dishonest about the state of their company in their accounting. So we can either write a thousand page bill that covers every conceivable way that a company could do that (and that is just as impenetrable to a "layman") or we can write a law that says "it's illegal to knowingly hide the state of a public company, direct questions to the FCC"
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
I don't think that "51 percent" thing means... well... anything. You wouldn't be using it the other way around had a Republican won the election.
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AManFromEarthLet's get to twerk!The King in the SwampRegistered Userregular
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
But that's what just happened. 51 percent of us got together and decided that its wrong for public companies to be dishonest about the state of their company in their accounting. So we can either write a thousand page bill that covers every conceivable way that a company could do that (and that is just as impenetrable to a "layman") or we can write a law that says "it's illegal to knowingly hide the state of a public company, direct questions to the FCC"
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
I don't think that "51 percent" thing means... well... anything. You wouldn't be using it the other way around had a Republican won the election.
Republicans lost the last election, and badly, and they're still saying that they represent the will of the American people.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
But that's what just happened. 51 percent of us got together and decided that its wrong for public companies to be dishonest about the state of their company in their accounting. So we can either write a thousand page bill that covers every conceivable way that a company could do that (and that is just as impenetrable to a "layman") or we can write a law that says "it's illegal to knowingly hide the state of a public company, direct questions to the FCC"
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
I don't think that "51 percent" thing means... well... anything. You wouldn't be using it the other way around had a Republican won the election.
Republicans lost the last election, and badly, and they're still saying that they represent the will of the American people.
And their explanations almost always amount to calling the people stupid moochers
I'd argue that Washington probably fucked up things worse by making sure things weren't built around the idea that people might decide to be partisan assholes. People are going to take sides on things, so the best course of action would have been making sure that the partisan assholes couldn't drag things to a standstill while they threw temper tantrums.
Getting off topic, but he did. Or more accurately the Framers did. Because while without a checks and balances system Obama might be able to push his agenda more, without it Bush would have been able to get away with more and the Republicans would likely now control government. Republicans control the House. In a Westminster style government that would mean they control government unilaterally. They're controlled the House all but 4 years since 1994.
It's useless to speculate about this kind of thing because in a Westminster style government, Obama would have been running for Speaker of the House and midterm elections wouldn't exist because they make no sense.
shryke on
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
But that's what just happened. 51 percent of us got together and decided that its wrong for public companies to be dishonest about the state of their company in their accounting. So we can either write a thousand page bill that covers every conceivable way that a company could do that (and that is just as impenetrable to a "layman") or we can write a law that says "it's illegal to knowingly hide the state of a public company, direct questions to the FCC"
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
I don't know what it means to "knowingly" do it. Do you impute the knowledge of my employees? Of the people who don't even directly report to me?
I don't know what the state of my company means.
I don't know what it means to "hide" information. If its buried in a footnote, have I hidden it? If it can be derived from information in the report but a particular conclusion has not been included, did I hide it? Is waiting for my annual filing and describing it enough, or do I have to reach out proactively to tell the SEC?
Nothing is simple, and if we have to wait for the Supreme Court to tell us what the rule means, we will end up with wildly inconsistent information and behavior for years until we get some resolution.
that level of micromanagement is delegated to executive authority; we call it 'regulation'. There is no legislature alive that can codify the details and penalties of every plausible action. it is simply not physically possible to achieve a world where laymen can understand an area of law without resorting to years of legal training and specialization.
even lawyers do not try; that is why there are whole areas of law that give up and standardize that it's not what you could expect that counts, but what actually happened - hence thin skull rules and so forth. Reality can toss you some truly absurd cases.
but that's admittedly beside the point. I was arguing that even if the law were wholly unambiguously written, the court still has essentially unrestrained discretion in reading contradictions into the text. Which is particularly unavoidable in constitutional republics, given that constitutions are necessarily briefer than the law they encompass.
it is simply not physically possible to achieve a world where laymen can understand an area of law without resorting to years of legal training and specialization.
even lawyers do not try; that is why there are whole areas of law that give up and standardize that it's not what you could expect that counts, but what actually happened - hence thin skull rules and so forth. Reality can toss you some truly absurd cases.
The Eggshell Skull rule is a simple and easily applied answer to a specific doctrinal question that could have been decided the other way just as easily, no?
I would like to hear in a bit more detail why you think such a limited doctrine constitutes a broad surrender to the impossibility of understanding Tort law (and also most law in general?).
e: Not to mention that Vosburg v. Putney leaves intact defenses that establish non-negligence based on reasonable foreseeability, which you seem to misunderstand; it only goes to the extent of damages permissibly found once negligence has been established in spite of any such valid defenses.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
It does capture two different approaches to considering how fault is assessed: one where you are safe as long as you follow the state-(or court-)endorsed best/reasonable practice, and another where you are safe as long as you avoid inflicting actionable harm. Newer jurisprudence tend to adopt the former more than the latter, but this is not a hard-and-fast pattern either. The thin skull is solidly in the latter.
On the edit note, it isn't coincidental that law-and-economics a la Posner, which tends to go with the former, also emphasizes just how much the procedural detail of law is simply irrelevant to how it constructs incentives toward harm. The tortfeaser doesn't care whether he winds up classified as liable, he cares about the eventual hit to the pocketbook.
American tort law requires tortfeasors to make their victims whole. The Eggshell Skull rule simply restates this fundamental principle in terms of how thoroughly a theory of reasonable expectations fails to defeat that principle.
The Vosburg court found the defendant's behavior to be tortious under their standard of fault, and only then mentioned the rule in order to shoot down the defendant's assertion that he was not required to make the victim whole. The Eggshell Skull rule never plays a part in the process of determining fault.
And let's say we leave that point aside. It seems very strange to claim that tort law and lawyers were forced to flee the field when faced with the need to apply a "reasonable expectation" standard in their work. That cannot be true when modern negligence analysis favors several tests rooted in the "reasonable foreseeability" of X leading to Y. They have embraced as the core of tort litigation near-exactly the same nebulous question that you imply they were already forced to standardize out of existence.
There's a perfectly fine argument to be made for the economic necessity of delegated regulation, but your analogy to tort law does not hold up well.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
Again, the tortfeaser doesn't care whether he gets determined to be at fault, the tortfeaser cares about the expected damages. There is no adult alive who can say that they have lived their lives having successfully avoided all behaviour that could be construed as tortious by a disinterested judge.
And modern societies frequently transform this into standardized practice: we force you to buy car insurance because we actively expect that it is physically impossible for you make good on a promise to never, ever get in an accident for which you will be liable and possibly unable to pay. That's the modern regulatory thinking in action. And yet, in exactly the same area of law, we also have the older uncapped-liability thinking, where it's on the tortfeaser to have avoided the tort, and so the audacity of having a sinful gaze warrants having his metaphorical eyes gouged out.
But there is no law or jurisprudence that could codify all possible liabilities, because the world can get absurd faster than you can stuff it into a conceptual box. There is simply too much scope for mischievous gaming of finely-tuned liability rules. So we don't, and force the tortfeaser to just suck it.
Again, the tortfeaser doesn't care whether he gets determined to be at fault, the tortfeaser cares about the expected damages.
I don't intend to challenge whatever social incentives you might be claiming outside the courtroom, but the quoted is simply wrong with regard to the motivations created in most tort cases by the black letter law; this is all I've been trying to say.
If a court finds tortious fault, the defendant pays the full amount required to make the plaintiff whole - no more or less and without regard for expectations as to what damages might have occurred. If the court does not find tortious fault, the defendant pays nothing.
So the quoted is the opposite of what tortfeasors necessarily care about at trial.
I made a game! Hotline Maui. Requires mouse and keyboard.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though.
If you're not sure that the accounting "trick" is acceptable by the current laws, don't do it.
And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
Most people get it just fine. It's amoral people who can't distinguish between whether something is moral or legal that are the problem. Though people like that don't seem to give a fuck about ignoring or perverting the law for immoral activities when it benefits them and America suffers for it.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
It's not like people sit around wondering if murder is wrong or if this particular shady accounting trick specifically illegal or just immoral. Laws exist to codify and punish (arguably prevent) behaviors that are already wrong.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
But that's what just happened. 51 percent of us got together and decided that its wrong for public companies to be dishonest about the state of their company in their accounting. So we can either write a thousand page bill that covers every conceivable way that a company could do that (and that is just as impenetrable to a "layman") or we can write a law that says "it's illegal to knowingly hide the state of a public company, direct questions to the FCC"
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
I don't know what it means to "knowingly" do it. Do you impute the knowledge of my employees? Of the people who don't even directly report to me?
I don't know what the state of my company means.
I don't know what it means to "hide" information. If its buried in a footnote, have I hidden it? If it can be derived from information in the report but a particular conclusion has not been included, did I hide it? Is waiting for my annual filing and describing it enough, or do I have to reach out proactively to tell the SEC?
Nothing is simple, and if we have to wait for the Supreme Court to tell us what the rule means, we will end up with wildly inconsistent information and behavior for years until we get some resolution.
That depends on numerous factors. It can be when its buried in a 1000 page document on the 300th page and no-one tells the relevant SEC people where it is. It might be legal but that's wasting valuable time from the SEC or government agency finding relevant information on companies or individuals. Its especially galling since we all know the SEC is under-staffed, under-funded and too chicken shit to prosecute any big company.
Again, the tortfeaser doesn't care whether he gets determined to be at fault, the tortfeaser cares about the expected damages.
I don't intend to challenge whatever social incentives you might be claiming outside the courtroom, but the quoted is simply wrong with regard to the motivations created in most tort cases by the black letter law; this is all I've been trying to say.
If a court finds tortious fault, the defendant pays the full amount required to make the plaintiff whole - no more or less and without regard for expectations as to what damages might have occurred. If the court does not find tortious fault, the defendant pays nothing.
So the quoted is the opposite of what tortfeasors necessarily care about at trial.
expectation = probability of being found at fault * damages if found at fault
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
Again, the tortfeaser doesn't care whether he gets determined to be at fault, the tortfeaser cares about the expected damages.
I don't intend to challenge whatever social incentives you might be claiming outside the courtroom, but the quoted is simply wrong with regard to the motivations created in most tort cases by the black letter law; this is all I've been trying to say.
If a court finds tortious fault, the defendant pays the full amount required to make the plaintiff whole - no more or less and without regard for expectations as to what damages might have occurred. If the court does not find tortious fault, the defendant pays nothing.
So the quoted is the opposite of what tortfeasors necessarily care about at trial.
expectation = probability of being found at fault * damages if found at fault
I agree with you that in any proceeding, what people care about are the consequences of a loss, not just the technical loss, but those consequences often include bad press (especially for doctors in med mal cases), and in criminal proceedings, the bare fact of the loss often matters more than the punishment, since felons have a hard time being hired.
I also agree that we cannot expect the legislature to write an all encompassing law, but they routinely make major drafting errors (which they do not bother to correct) in the actual text, which handcuffs the regulators into writing regulations that themselves make little sense, because regulations cannot supersede statutes. Even things as simple as using slightly different phrasing for the same concept at different places in the text can wreck havoc on the interpretation of the law, and what the regulators can do. And that is literally nothing but laziness/sloppiness on their part, and it is exactly the kind of thing the courts should throw back in Congress's face, by giving effect to those differences even if it leads to absurd consequences, IMO. Actually, especially when the consequences are absurd.
Posts
Hell, Washington's final speech as president was against the evils of partisan governing. Guy had forsight like a mutherfucker.
Battlenet ID: MildC#11186 - If I'm in the game, send me an invite at anytime and I'll play.
battletag: Millin#1360
Nice chart to figure out how honest a news source is.
I could defend the weather analogy in more depth, but I don't think it's really worthwhile to do so. Instead I'll just say that I'm not sure what you mean when you say that referencing what the law actually says "adds nothing." What is the something that is supposed to be added, but which fails to be so added? Something is missing--what, in particular?
Or to put it more succinctly: the Constitution is not a suicide pact.
ah, on re-reading your post, I see where I have been unclear. I was referring to the notion of an institutional check within the human organization that is the US judicial branch, that seeks to impose the objective of 'upholding the law as written', so that institutions that are not the court (the legislatures, the people) can take it as given that the conduct of the court is so restrained by the text.
So we could have, as in the scenario posited by skfm, the court rigidly go with the text of the law, so that the legislature retains the whole responsibility to issue and amend legislation
it so happens that in relatively recent US history, the US supreme court has openly acknowledged a degree of activism. but in fact it has been active in altering legislation since founding and generally asserting that the altered view exists in the text. Now we can sit around arguing over the merits of living constitutionalism vs strict constructionism, but these would be hypothetical aims for the court to take up. For everyone else, judicial interpretation is a decidedly living phenomenon.
Insofar as we are considering how human institutions may react to one another, entities are not the court are necessarily legal-realist, if you will. Having the court "uphold the law as written" is like a country changing its name to Democratic Socialist Republic of X. That doesn't actually contribute to democracy or socialism or republicanism.
Well, the idea is a bit optimistic and doesn't work in reality, but it's to have each political leader base each descision individually and not along party lines.
So in modern terms, say you have a politician who is really conservative on gun control, but they see the value in scientific research, they would vote against gun control and for scientific research. But a party would have people vote along those lines, even if the individual doesn't agree with the party.
The Sandy relief bill as a recent example of people voting along party lines, even though some members of the GOP wanted to vote on it based on their personal values.
Not saying Washington was right, but he did see this problem coming. His issue was that he was too idealistic for reality and didn't account for the Greater Political Fuckwad Theory.
Battlenet ID: MildC#11186 - If I'm in the game, send me an invite at anytime and I'll play.
party whips in the US context are far weaker than in westminster systems
what you have arises from individual deals and horse-trading within the legislatures themselves - by voting party-line, people trade their vote on scientific research to obtain votes on gun control. but US whips cannot expel recalcitrant members wholly from the administration, since they cannot be in the administration to begin with, and the coat-tail effect is long-since diminished.
US parties were created precisely because politicians cared fervently about the way the French revolution was unfolding, far more than they cared about their individual disputes with each other
Silly old man was silly.
Of course I have no idea what that would result in in practice, since I don't think it's been tried before.
They are also a reflection of the fact that people have different ideas on how the world should run and organize around them. A partiless system in reality is only going to work in a one-party authoritatian government, and even in those you have formal factions that form.
Err
Help me follow this logic
1): A law exists making it harder to suppress black turnout
2): Therefore black turnout is higher
3): Therefore the law is not needed
What?
Getting off topic, but he did. Or more accurately the Framers did. Because while without a checks and balances system Obama might be able to push his agenda more, without it Bush would have been able to get away with more and the Republicans would likely now control government. Republicans control the House. In a Westminster style government that would mean they control government unilaterally. They're controlled the House all but 4 years since 1994.
QEDMF xbl: PantsB G+
It's the "we don't need seat belts anymore because driving fatalities have gone down" argument.
The issue is one of certainty. How can the law function as a means of controlling behavior if the people literally cannot determine what the law actually requires of them until said law has been rules on by the Supreme Court? To make matters worse, there are very few single clause, single purpose laws, so having a law ruled on will still leave significant ambiguity WITHIN that law. I do not think that the law can serve its purpose as a guide to behavior if those drafting the law do not make a much greater effort to write clear, accurate laws and a layman cannot understand what the law requires without reading tomes of legislative history and judicial precedent, and accurately guessing at what the court might hold.
We can toss out the drunk driving laws too.
Battlenet ID: MildC#11186 - If I'm in the game, send me an invite at anytime and I'll play.
Or as someone said better "do not to your neighbor that which is hateful to you, the rest is commentary."
Battlenet ID: MildC#11186 - If I'm in the game, send me an invite at anytime and I'll play.
Look on the bright side, he'll save children but not the British children.
Without clarity, you don't know if the accounting "trick" is accepted behavior and how you are meant to do it or a dodge though. And that is ignoring the whole morality/legality divide and the fact that people need to agree on what is legal even though they will never agree on what is moral.
I mean, the problem that we have isn't well meaning people unknowing breaking the law. The problems is people sitting around trying to figure out how to make illegal things legal.
I don't think that "51 percent" thing means... well... anything. You wouldn't be using it the other way around had a Republican won the election.
Republicans lost the last election, and badly, and they're still saying that they represent the will of the American people.
And their explanations almost always amount to calling the people stupid moochers
It's useless to speculate about this kind of thing because in a Westminster style government, Obama would have been running for Speaker of the House and midterm elections wouldn't exist because they make no sense.
I don't know what it means to "knowingly" do it. Do you impute the knowledge of my employees? Of the people who don't even directly report to me?
I don't know what the state of my company means.
I don't know what it means to "hide" information. If its buried in a footnote, have I hidden it? If it can be derived from information in the report but a particular conclusion has not been included, did I hide it? Is waiting for my annual filing and describing it enough, or do I have to reach out proactively to tell the SEC?
Nothing is simple, and if we have to wait for the Supreme Court to tell us what the rule means, we will end up with wildly inconsistent information and behavior for years until we get some resolution.
even lawyers do not try; that is why there are whole areas of law that give up and standardize that it's not what you could expect that counts, but what actually happened - hence thin skull rules and so forth. Reality can toss you some truly absurd cases.
but that's admittedly beside the point. I was arguing that even if the law were wholly unambiguously written, the court still has essentially unrestrained discretion in reading contradictions into the text. Which is particularly unavoidable in constitutional republics, given that constitutions are necessarily briefer than the law they encompass.
The Eggshell Skull rule is a simple and easily applied answer to a specific doctrinal question that could have been decided the other way just as easily, no?
I would like to hear in a bit more detail why you think such a limited doctrine constitutes a broad surrender to the impossibility of understanding Tort law (and also most law in general?).
e: Not to mention that Vosburg v. Putney leaves intact defenses that establish non-negligence based on reasonable foreseeability, which you seem to misunderstand; it only goes to the extent of damages permissibly found once negligence has been established in spite of any such valid defenses.
On the edit note, it isn't coincidental that law-and-economics a la Posner, which tends to go with the former, also emphasizes just how much the procedural detail of law is simply irrelevant to how it constructs incentives toward harm. The tortfeaser doesn't care whether he winds up classified as liable, he cares about the eventual hit to the pocketbook.
American tort law requires tortfeasors to make their victims whole. The Eggshell Skull rule simply restates this fundamental principle in terms of how thoroughly a theory of reasonable expectations fails to defeat that principle.
The Vosburg court found the defendant's behavior to be tortious under their standard of fault, and only then mentioned the rule in order to shoot down the defendant's assertion that he was not required to make the victim whole. The Eggshell Skull rule never plays a part in the process of determining fault.
And let's say we leave that point aside. It seems very strange to claim that tort law and lawyers were forced to flee the field when faced with the need to apply a "reasonable expectation" standard in their work. That cannot be true when modern negligence analysis favors several tests rooted in the "reasonable foreseeability" of X leading to Y. They have embraced as the core of tort litigation near-exactly the same nebulous question that you imply they were already forced to standardize out of existence.
There's a perfectly fine argument to be made for the economic necessity of delegated regulation, but your analogy to tort law does not hold up well.
And modern societies frequently transform this into standardized practice: we force you to buy car insurance because we actively expect that it is physically impossible for you make good on a promise to never, ever get in an accident for which you will be liable and possibly unable to pay. That's the modern regulatory thinking in action. And yet, in exactly the same area of law, we also have the older uncapped-liability thinking, where it's on the tortfeaser to have avoided the tort, and so the audacity of having a sinful gaze warrants having his metaphorical eyes gouged out.
But there is no law or jurisprudence that could codify all possible liabilities, because the world can get absurd faster than you can stuff it into a conceptual box. There is simply too much scope for mischievous gaming of finely-tuned liability rules. So we don't, and force the tortfeaser to just suck it.
I don't intend to challenge whatever social incentives you might be claiming outside the courtroom, but the quoted is simply wrong with regard to the motivations created in most tort cases by the black letter law; this is all I've been trying to say.
If a court finds tortious fault, the defendant pays the full amount required to make the plaintiff whole - no more or less and without regard for expectations as to what damages might have occurred. If the court does not find tortious fault, the defendant pays nothing.
So the quoted is the opposite of what tortfeasors necessarily care about at trial.
If you're not sure that the accounting "trick" is acceptable by the current laws, don't do it.
Most people get it just fine. It's amoral people who can't distinguish between whether something is moral or legal that are the problem. Though people like that don't seem to give a fuck about ignoring or perverting the law for immoral activities when it benefits them and America suffers for it.
That depends on numerous factors. It can be when its buried in a 1000 page document on the 300th page and no-one tells the relevant SEC people where it is. It might be legal but that's wasting valuable time from the SEC or government agency finding relevant information on companies or individuals. Its especially galling since we all know the SEC is under-staffed, under-funded and too chicken shit to prosecute any big company.
expectation = probability of being found at fault * damages if found at fault
I agree with you that in any proceeding, what people care about are the consequences of a loss, not just the technical loss, but those consequences often include bad press (especially for doctors in med mal cases), and in criminal proceedings, the bare fact of the loss often matters more than the punishment, since felons have a hard time being hired.
I also agree that we cannot expect the legislature to write an all encompassing law, but they routinely make major drafting errors (which they do not bother to correct) in the actual text, which handcuffs the regulators into writing regulations that themselves make little sense, because regulations cannot supersede statutes. Even things as simple as using slightly different phrasing for the same concept at different places in the text can wreck havoc on the interpretation of the law, and what the regulators can do. And that is literally nothing but laziness/sloppiness on their part, and it is exactly the kind of thing the courts should throw back in Congress's face, by giving effect to those differences even if it leads to absurd consequences, IMO. Actually, especially when the consequences are absurd.