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- Xref: sparky misc.legal:23055 alt.censorship:10066 alt.society.civil-liberty:7476 alt.politics.usa.constitution:1522
- Newsgroups: misc.legal,alt.censorship,alt.society.civil-liberty,alt.politics.usa.constitution
- Path: sparky!uunet!haven.umd.edu!darwin.sura.net!cos!cos!bob1
- From: bob1@cos.com (Bob Blackshaw)
- Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
- Message-ID: <bob1.727643881@cos>
- Organization: Corporation for Open Systems
- References: <1993Jan18.151505.1167@eff.org> <1993Jan18.225028.11914@ucsu.Colorado.EDU> <C14LK2.MAK@panix.com> <1993Jan20.061301.2539@ucsu.Colorado.EDU>
- Distribution: usa
- Date: Thu, 21 Jan 1993 19:18:01 GMT
- Lines: 38
-
- In <1993Jan20.061301.2539@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
-
- >In article <C14LK2.MAK@panix.com> lkk@panix.com (Larry Kolodney) writes:
- >>>It's really a question of theory and practice: In theory, judges
- >>>have no authority to, and should never, make law.
-
- Excuse a legal neophyte, but I was under the impression that our
- civil code, much like the English code, is based on, or rather,
- makes extensive use of precedent. If this is so, then *any*
- decision by the SC could and would be used as a precedent. This
- is not exactly making law so much as interpreting it, but if
- the interpretation is radically different than any that had
- gone before, it is at least giving an old law a new twist.
-
- Have I been watching too much Perry Mason?
-
- >>Where did you get this idea? Judge's have been making law at least
- >>since the creation of the first Courts of Equity in the middle ages.
- >>The vast majority of rules concerning contracts and torts (i.e. "the
- >>common law") are made by judges, and always have been.
-
- >From a document drafted in 1787, called the United States Constitution...
- >It vests all (federal) legislative powers in Congress, and implicitly
- >rejects the common law principle of law making from the bench, in
- >favor of a "rule of law."
-
- >>There is nothing more fundamental to the Anglo-American legal
- >>tradition than that judges help the law to evolve to deal with novel
- >>situations and acheive substantial justice.
-
- >I'm afraid the federal courts took a different view (usually) from
- >1788 to around 1937 (although they still don't usually admitt
- >they are making the laws they think will "achieve substantial
- >justice, i.e. the ones that suit their political biases; prefering
- >instead to pretend these are just "interpertations"...)
-
- > Frank Crary
- > CU Boulder
-