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- Xref: sparky misc.legal:23152 alt.politics.usa.constitution:1541
- Newsgroups: misc.legal,alt.politics.usa.constitution
- Path: sparky!uunet!psinntp!cmcl2!panix!lkk
- From: lkk@panix.com (Larry Kolodney)
- Subject: Re: Making law (was: Shouting "Movie!" at a Fire Station)
- Message-ID: <C1AA88.Csr@panix.com>
- Organization: The Devil's Advocate
- References: <27ft02m733=201@JUTS.ccc.amdahl.com> <1993Jan21.041940.1487@ucsu.Colorado.EDU> <1993Jan21.061044.6447@midway.uchicago.edu> <1993Jan22.020117.20007@ucsu.Colorado.EDU>
- Date: Sat, 23 Jan 1993 01:45:43 GMT
- Lines: 42
-
- In <1993Jan22.020117.20007@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
-
-
- >I'm afraid I don't see this at all: If there is no existing law,
- >then the judge has no authority to deal with the issue. If he
- >refuses to deal with it, what has changed? By his refusal, there is
- >no case law on the established, and the status quo, a lack of
- >law on the subject, remains unchanged.
-
- Okay, how would you apply this prescription to the following scenario?
-
- A & B own neighboring vacant plots of land. A builds a house on her
- plot. Sometime later, B decides to build a house. B starts digging
- on his land, making very sure never actually to tresspass on A's
- property. Nevertheless, in spite of his best efforts, B's digging
- removes the underground support for A's property, and A's house starts
- to subside, causing thousands of dollars worth of damage.
-
- Now assume this is a case of first impression in your jurisdiction.
- Up until fairly recently, homebuilding technology did not entail
- digging deep foundations, and so this problem never occured before.
-
- So A sues B in tort for causing the subsidence of her property. B
- defends by claiming that this is really a claim for tresspasss and he
- never tresspassed, and in fact was only doing what he was legally
- entitled to do on his own property.
-
- You are a judge, and are asked to decide the case. How do you rule?
- If you refuse to award damages, you have eseentially created a law
- which says: "It is permitted to dig on ones land and cause the
- subsidence of the land of another, for which the other has no cause of
- action."
-
- If you rule in favor of A, you have of course made the opposite rule.
-
- Either way, you have unavoidably made law, despite your best efforts
- not to.
- --
- larry kolodney:(lkk@panix.com)
- _(*#&)#*&%)@(*^%_!*&%^!)*+!*&$+!?&%+!*&^_)*%)*&^%#+&
- The past is not dead, it's not even past. - Wm. Faulkner
-
-