Try again. Harvard costs 46-48k. And don't even get me started about Harvard Law School. The Ivies (especially Harvard and Yale) fuck the middle class.
Oh sweet Princeton, how I could have used that Bloustein money!
Be careful about how you present things that you may only have cursory knowledge of here on Slashdot.
This is what i want to be included in every thread that discusses courts and the law. IAAL.:(
Were you paying attention when the court recently held that you didn't automatically get an injunction -- as principles of equity would not allow that? No, you weren't. You seem to have no clue what the hell you're talking about. Please, leave Supreme Court commentary to Dahlia and the rest of us that actually, say, have a legal education? Eldred has absolutely no precedential value here WHATSOEVER. jackass.
Please start your posts with IANAL instead of ending it with IANAL. That way, those of us that actually went to law school don't have to get angry when you miss the mark. Thanks. It's not your fault, but in all honesty, I don't pretend to understand things I dont understand the finer mechanics of. SCOTUS rules on major issues all the times, and regularly re-interprets precedent.
You obviously don't understand what due process is. Please read Pennoyer v Neff, and the Supreme Court jurisprudence of "due process." Please read about notice. Please read about a minimum contacts analysis, and Burnham v Superior Court of California. You have no fucking clue what "due process" is. At all. You're confusing illegal search/siezure with due process. Seriously, shut up. IAAL. YHL. HAND.
Such a case would never pass a prosecutor's office. The police don't just throw you into jail, the DA decides if there's grounds to file charges. You'd never BE in court in the first case. (Prosecutorial discretion however is not subject to judicial review, see e.g. Inmates of Attica)
We have a presumption against crimes that lack mens rea; not an ironclad rule. There are crimes for which no mens rea is required (i.e. speeding) -- although these are much rarer in common law contexts than in MPC contexts (since Negligent/Reckless/Knowing/Purpose requires negligence/reckless unless otherwise specified) In the federal context, Congress has to explicitly remove the mens rea requirement -- but it CAN do so. (see e.g. US v Arthur Anderson, US v Morisette, and US v Staples, US V Liparota)
If you don't actually have a legal training and were just pulling the "criminal intent" line out of your ass -- sorry to say, but you're wrong.
As an aside, this is a CIVIL claim for copyright infringement. Intent is meaningless in that context.
The problem is you have a profound lack of understanding of the legal system of the entirety of western civilization. You keep referencing laws. There are no laws. Tort suits such as Liebeck's are under the common law. Slashdot is not the right place to explain to you 500 years of legal history, including the difference between equity and damages. This is not your fault; most Americans don't know the difference between "law" and "common law" (i.e. statutes and the common law) -- but by the same token, I don't go spouting about how some result in chemistry is "wrong" despite not being familiar with nuclear thermodynamics.
The reason they are liable is because of the severity of her burns. Let's phrase it this way: The probability of someone spilling coffee on themselves is.00000001. McDonalds knew this. McDonalds also knew that at the temperature it sold its coffee, permanent scarring was a 100% certainty. The reason McDonalds should be liable is because otherwise it has no incentive to find ways to reduce #2. (Remember: The reason McDonalds was keeping the coffee that hot was to avoid having to throw it out, i.e. from a cost perspective, they were making the coffee in large batches. There was no incentive for them to find other means of preserving coffee while still serving it at a temperature that would not cause permanent scarring.) Since McDonalds was profiting off the few injuries it causes, (.00000001 X the number of cups sold) it should be liable.
If you'd like to have a serious discussion into the 500 years of policy rationale behind this (starting at Winterbottom which disclaimed ALL liability) and then moving to Rylands, feel free to post an email address.
Your "petrol" analogy is 100% wrong. In the "custom and expected use" of coffee, you EXPECT some people to spill it. You have no reason to suspect or believe that anyone will drink petrol. (One is an accident that will statistically happen.) Also: Why do you think gasoline containers MUST BE RED AS A MATTER OF LAW in the US? So people would not mistake it for other liquids.
Used in an improper manner is one question of law, "accidents" are another. The evaluation has not been screwed, and in fact, the US is *harsher* towards the "improper use" than Britain. (I have studied comparative torts. If you'd like me to "back up" this assertion, you are out of luck. You can either a) enroll in a comparative torts class, b) read the studies yourself, or c) take me at face value. I am not teaching you a semester's worth of material in a slashdot post.) Spilling coffee is not an improper use; it is a reasonable expectation of something that will happen when you hand coffee to someone IN A CAR.
In your petrol example, you would commonly expect it to be transferred to a tank. During this process, it is highly suceptible to flame, cigarettes, etc. Go to your local petrol station and look for the notices about open flame and smoking.
Your last statement about how they 'are' going to be changed is just flat out wrong. The majority of tort reform is focused on malpractice in medical cases. I don't know what you do for a living, but I hope it is not law.
As a matter of law in other context, a liquid of greater than 170 degrees is considered a per se health hazard. McDonalds was selling their coffee at 175-185 degrees. You obviously didn't read the article on lect law. It's because of people like you that there is a percieved "tort" crisis. I have a legal education and I have repeatedly gone out of my way on Slashdot to explain HOW our legal system works and WHY cases like this turn out like they do. Let me put it this way: If you hand something to someone that will permanently scar them if it comes in contact with their skin, and you do not explicitly warn them of such, you are liable if they drop it. Period. That's the law in England, that's the law in Australia, and that's the law in every country where there is a common law of negligence. Have you studied comparative torts? I have. Your assertions are wrong. The McDonalds case actually comes out WORSE for the company in England. Now, piss off and come back to the discussion when you actually know something, rather than pulling ad-hoc legal arguments out of your ass. Sorry for the harsh words, but I actually *know* what I'm talking about. There are THOUSANDS of frivolous lawsuits in the US every year. Liebeck's was not one of them.
Just because you were educated in the US does not mean your skills,work ethic etc are in any way superior to anyone else.
I'm not quite sure that's true. There are a number of employers (world wide) that salivate over certain US degrees. A JD/LLM from the United States is considered a hot property. Ditto a degree from any of the "name brand" US schools. Save schools like INSEAD, Tsinghua, etc, a degree from Harvard, Yale or Stanford will carry you quite far. Also, I don't like your reasoning: Just because the market thinks someone is hot shit doesn't mean they are. Someone might be worth 250k and the market might not be willing to pay it -- and someone might be worth far less and the market might be willing to pay far more. Right now, the "market" is paying me almost 3 grand a week, and I really don't think I'm worth it. But I'm going to work hard, and we'll see how it goes.
post an email address at which i can reach you.:)
as far as everyone else in the country goes, there are a number of books. I am compiling a list for PJ over at groklaw, and will be developing a short treatise on "law for normal people." {also look in the next few days for my "Layperson's guide to summary judgment" on groklaw, when i finish editing the celotex part}
First, I apologize for the terse words -- you have frustrated me by continuing your practice of substituting "the third branch" for "the entire US government" whenever you see fit to do so in your argument. My original post was ONLY concerning the role of judges/lawyers in the system as it currently exists.
Again, your post only further indicates what I meant. You are unhappy with the entire american system of government. Let's clear something up: When I was defending "the system" I was defending judges. From now on, please make it clear when you are talking about the american system of government (all three branches) or just the third branch.
No, judges cannot "do what is right" according to John Roberts and many others -- judges are like umpires, they call the shots. They may not like the rules, but their job is to call the shots. The legislature makes the rules. Asking judges to "do the right thing" is the very heart of "judicial activism" -- and it can backfire. (see Walker vs Birmingham -- where a judge did what he thought was right and screwed over MLK) And more notoriously, it was COMMON for jury nullification to let white segregationists in the south go free for murdering blacks or civil rights workers. All of that being said: a few points.
One of the reasons jury nullification has been argued against is that it allows the COURTS (via a jury) the power to ignore the legislature. Many federalists are against this idea. Also, jury nullification is only a concern in criminal cases -- it's not exactly a hot topic in CIVIL lawsuits.
You raised the point of lawyers fees. I agree with you about the problem of providing legal services for those that cannot afford them; Cases like Lassiter v Department of Social Services really upset me. (If you're not going to look up these cases, please let me know. I'm assuming you're intelligent and reading these, i'm not citing them for my health. The story in Lassiter is v. compelling.) But at the same time, the court once made steps to make sure there WAS equal access to the courts for all (Boddie v Connecticut) -- but this is another "mommy" problem. (The right-to-counsel is only in criminal proceedings.)
Re: InfoUSA and the junk fax link you sent. I see nothing whatosever about her claim being dismissed. What court was this in? Small claims? Federal? State? There's nothing whatsoever but an assertion that a claim was filed and dismissed without comment. An action for 500$ will be dismissed in federal court because it does not meet the "amount in controversy" if (and only if) the only reason for federal jurisdiction is "diversity jurisdiction." If she filed this in STATE COURT, then she is governed by the LAWS of the COURTS IN HER STATE -- WHICH ARE WRITTEN BY STATE LEGISLATURES. You seem to have confused FEDERAL courts with STATE COURTS. In some respects, they differ GREATLY. (Look up what a "certified question" is -- and why it is important)
Your beef seems to be primarily with the legislature; all of your arguments (save jury nullification) are attacks on the legislative process. I fail to see how the courts are to blame for the situation. Again, the third branch has only judgment -- neither force nor will. In your reply, please make clear when you are specifically discussing the ROLE OF THE COURT. Judges != legislatures.
It is my understanding that the court can instruct the jury that they can invalidate any law via the process of jury nullification. Once invalidated, conviction is impossible. Am I incorrect in this assumption? It is also my understanding that a judge can dismiss a case without comment. Am I incorrect in that assumption as well? I would have to be wrong on both counts for you to be able to back up your statement, I think.
You know absolutely nothing about how our system works. Your assumptions are incorrect. Good day to you, sir.
There are three criminal contexts in the US, MPC, Federal, and Common law. In some, honest ignorance of the law *is* a defense. It depends on what type of crime. (i.e. it doesn't work for murder, but it does for certain types of statutory crimes)
There are many things about our system that are broken; I thought you were capable of discussion. Instead, you wipe the slate clean, deriding it as systematically and fatally flawed, and you sound, sir, like a crackpot. Your assumptions are wrong, and I will tolerate your tone no further. Until you learn about how the system currently works, you will continue to be frustrated, and you will never make progress as you will be fighting something that only exists in your mind.
I do not agree with the court's opinion -- but I know how it got there. (Notice the "liberals" are in the majority and the "conservatives" are in the dissent.) [Re: scalia on this one is a whole other can of worms...]
The rest of your post deals with the 2nd branch. There is nothing the court can do if elected officials chose to make the laws confusing and ridiculous. (Anything otherwise would be "judicial activism"...)
You do not have an obligation to know all the laws. We have a presumption AGAINST crimes that lack mens rea in this country. (See US v Arthur Anderson or Morissette v US. But see Bailint) [Ironically, this is a judicial construction designed to protect the people from overzealous legislatures -- but I don't see anyone calling out the third branch on this one.]
This is what so fundamentally bothers me about your post. Your entire critique is of the legislature, yet you blame lawyers and the third branch for the problems of the second. We sit with neither force nor will, but only judgment. You raise the point that the "system" is broken -- it very well may be; and if it is, don't blame the courts and lawyers for what you percieve to be a fundamental defect in the entire system of american government.
Max,
I respect you, but unfortunately you are not correct regarding your use of deadly physical force in Oregon.
A few notes:
Generally, existence of statutory defense to criminal prosecution does not necessarily mean that civil liability can be avoided as well. Hatfield v. Gracen, 279 Or 303, 567 P2d 546 (1977)
That being said....
Then we begin with ORS 161.225.
Use of physical force in defense of premises.
(1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.
(2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only:
(a) In defense of a person as provided in ORS 161.219; or
(b) When the person reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser.(3) As used in subsection (1) and subsection (2)(a) of this section, "premises" includes any building as defined in ORS 164.205 and any real property. As used in subsection (2)(b) of this section, "premises" includes any building.
See ORS 161.219
ORS § 161.219 (2006) 161.219. Limitations on use of deadly physical force in defense of a person.
Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:
(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or
(2) Committing or attempting to commit a burglary in a dwelling; or
(3) Using or about to use unlawful deadly physical force against a person.
Ok. well, lets check what else might be available. Hmm, ORS 161.229.
Use of physical force in defense of property.
A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that the person reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief of property.
As I've stated in other posts, the firing of a projectile weapon is considered "deadly force" regardless of if you kill the person or not. So if you shoot them as they are running and you hit them in the leg, it will be analyzed as though you had aimed for their head. (since you could have hit them in the head)
What about making a citizen's arrest?
161.255. Use of physical force by private person making citizen's arrest.
(1) Except as provided in subsection (2) of this section, a private person acting on the person's own account is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to make an arrest or to prevent the escape from custody of an arrested person whom the person has arrested under ORS 133.225.
(2) A private person acting under the circumstances prescribed in subsection (1) of this section is justified in using deadly physical force only when the person reasonably believes it necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force.
The discussion was about if you could just "shoot a trespasser" at will. If someone becomes violent and you have a reasonable fear of your life/serious bodily harm, you're allowed to defend yourself *anywhere* -- it's called self defense. Things that happen at night are a special case, since courts as a per-se rule consider nighttime things to be an almost automatic reasonable fear for your life. If you shoot threaten violence and they don't leave, but respond with, "You can threaten me all you want, but I know you can't hurt me because I'm not going to hurt you, and I'm unarmed" s/he would be right. Your use of force there (especially deadly force) would not be justified. What you've stated, however, is not what other people in this thread have stated. I'd agree in a large part with your analysis. I just looked up the relevant oregon statutes, and you're not exactly correct, but you're close enough. In summation: You can threaten violence all you want. If you actually become violent, there will be an inquiry into if your violence was reasonable. If you use deadly force (shooting someone is per se deadly force) you will very often lose except for limited circumstances. (Most of the other people in this thread are whack jobs who seem to think you can pop a cap in someone for traipsing across your property to pick berries. You seem far more moderate. I'd pretty much say in any situation where the person has made clear their intent to do harm, you're ok using force. There might be an inquiry into the proportionality of the force you use, but thats it. But that wasnt the context of the discussion of this thread)
Landlord-tenant law is very specific -- landlords have a duty to mitigate in residential settings. This is because modern property law has started to merge with contract law in the realm of leases. Depending on your jurisdiction, your landlord is probably obligated to put in a "good faith" effort to re-rent the apartment, and can charge you the reasonable costs of doing so. In a residential lease, there is no jurisdiction where your landlord can just do nothing and sit on an empty apartment and charge you. Your landlord screwed you a bit.
Re: Your phone company. They could have forced the fee -- it would have been upheld as reasonable "liquidated damages." HOWEVER -- just because a company has a right to do something doesn't mean they have to. Gossip is the best sanction -- your cell phone company was smart. You probably think highly of them and will most likely recommend them to friends, and if they do expand into your area, would you use them again?
The rationale behind all this is that in a capitalist system, part of the nature of the beast is some people make deals that turn out to be bad. I.e. I promise to buy 1000 bushels of wheat at a price, and the price goes up or down. If the price goes up, the seller would rather not sell to me. If the price goes down, I'd rather not buy from the seller. (We'd both rather get the market price.) If people were allowed to just "get out" of these situations with no penalty, there'd be no stability in the business world at all. (Every time you misestimated costs, etc you'd just breach your contract) The other problem is this: If i'm the guy who promised to buy at a certain price and the price went UP, I want to force the seller to sell to me. Likewise, If i'm the guy who promised to sell at a certain price and the goes down, I want to force the buyer to take delivery. The reason contracts have to be reasonable ex-ante is because there is always a "losing" side ex-post -- and from the "losing" side, you can always say "I'd never agree to that deal where I lose money!" [Where the winning side always says the opposite.] Does this help as to why reasonableness is judged ex-ante?
Please read the lectlaw link. She was found to be 20% negligent for exactly your reason. It was stupid for her to have the coffee in her lap. The jury found that it was MORE stupid for Mcdonalds to give someone IN A CAR a cup of liquid that would burn their skin in under six seconds, since you can easily imagine how someone in a car might accidentally spill something. If you can reasonably forsee someone hurting themselves and you can prevent it and fail to do so, that is called negligence. If you don't like the idea of being sued for negligence, I suggest you not live in any common law country, or any country with statutory negligence laws. (Basically you can forget all countries where english is the primary language, and most [potientially all] of europe.)
As I understand it, one of the bedrock legal principles is that a person cannot be held responsible for obeying laws that he does not know about, but that a person has a concomitant obligation to know the laws, so that he cannot use ignorance as an excuse. This is why laws are public.
This is not really correct. Depending if the jurisdiction is common law, model penal code, or federal, there are allowable defenses regarding mistakes of law and mistakes of fact. Furthermore, there is a presumption against the creation of crimes for which there is no mens rea requirement. Congress must specifically announce their intent to do so. This has been a judicial interpretation and is a judicial canon of construction.
For a good first year criminal law outline, check out: http://www.law.northwestern.edu/sfpif/outlines/Cri minal%20Law%20Outline.doc [i googled and found it. it's actually pretty accurate] You should look at the section on Bailint and Morissette.
You do realize that your entire post is actually a criticism of LEGISLATURES and not COURTS, right?
Slashdot Mirror
Which Harvard are you attending? The one in Cambridge, Mass?
http://www.fao.fas.harvard.edu/cost.htm
Try again. Harvard costs 46-48k. And don't even get me started about Harvard Law School. The Ivies (especially Harvard and Yale) fuck the middle class.
Oh sweet Princeton, how I could have used that Bloustein money!
Be careful about how you present things that you may only have cursory knowledge of here on Slashdot. This is what i want to be included in every thread that discusses courts and the law. IAAL. :(
Were you paying attention when the court recently held that you didn't automatically get an injunction -- as principles of equity would not allow that? No, you weren't. You seem to have no clue what the hell you're talking about. Please, leave Supreme Court commentary to Dahlia and the rest of us that actually, say, have a legal education? Eldred has absolutely no precedential value here WHATSOEVER. jackass.
Please start your posts with IANAL instead of ending it with IANAL. That way, those of us that actually went to law school don't have to get angry when you miss the mark. Thanks. It's not your fault, but in all honesty, I don't pretend to understand things I dont understand the finer mechanics of. SCOTUS rules on major issues all the times, and regularly re-interprets precedent.
You obviously don't understand what due process is. Please read Pennoyer v Neff, and the Supreme Court jurisprudence of "due process." Please read about notice. Please read about a minimum contacts analysis, and Burnham v Superior Court of California. You have no fucking clue what "due process" is. At all. You're confusing illegal search/siezure with due process. Seriously, shut up. IAAL. YHL. HAND.
Such a case would never pass a prosecutor's office. The police don't just throw you into jail, the DA decides if there's grounds to file charges. You'd never BE in court in the first case. (Prosecutorial discretion however is not subject to judicial review, see e.g. Inmates of Attica)
We have a presumption against crimes that lack mens rea; not an ironclad rule. There are crimes for which no mens rea is required (i.e. speeding) -- although these are much rarer in common law contexts than in MPC contexts (since Negligent/Reckless/Knowing/Purpose requires negligence/reckless unless otherwise specified) In the federal context, Congress has to explicitly remove the mens rea requirement -- but it CAN do so. (see e.g. US v Arthur Anderson, US v Morisette, and US v Staples, US V Liparota)
If you don't actually have a legal training and were just pulling the "criminal intent" line out of your ass -- sorry to say, but you're wrong.
As an aside, this is a CIVIL claim for copyright infringement. Intent is meaningless in that context.
The problem is you have a profound lack of understanding of the legal system of the entirety of western civilization. You keep referencing laws. There are no laws. Tort suits such as Liebeck's are under the common law. Slashdot is not the right place to explain to you 500 years of legal history, including the difference between equity and damages. This is not your fault; most Americans don't know the difference between "law" and "common law" (i.e. statutes and the common law) -- but by the same token, I don't go spouting about how some result in chemistry is "wrong" despite not being familiar with nuclear thermodynamics.
.00000001. McDonalds knew this. McDonalds also knew that at the temperature it sold its coffee, permanent scarring was a 100% certainty. The reason McDonalds should be liable is because otherwise it has no incentive to find ways to reduce #2. (Remember: The reason McDonalds was keeping the coffee that hot was to avoid having to throw it out, i.e. from a cost perspective, they were making the coffee in large batches. There was no incentive for them to find other means of preserving coffee while still serving it at a temperature that would not cause permanent scarring.) Since McDonalds was profiting off the few injuries it causes, (.00000001 X the number of cups sold) it should be liable.
The reason they are liable is because of the severity of her burns. Let's phrase it this way: The probability of someone spilling coffee on themselves is
If you'd like to have a serious discussion into the 500 years of policy rationale behind this (starting at Winterbottom which disclaimed ALL liability) and then moving to Rylands, feel free to post an email address.
Your "petrol" analogy is 100% wrong. In the "custom and expected use" of coffee, you EXPECT some people to spill it. You have no reason to suspect or believe that anyone will drink petrol. (One is an accident that will statistically happen.) Also: Why do you think gasoline containers MUST BE RED AS A MATTER OF LAW in the US? So people would not mistake it for other liquids.
Used in an improper manner is one question of law, "accidents" are another. The evaluation has not been screwed, and in fact, the US is *harsher* towards the "improper use" than Britain. (I have studied comparative torts. If you'd like me to "back up" this assertion, you are out of luck. You can either a) enroll in a comparative torts class, b) read the studies yourself, or c) take me at face value. I am not teaching you a semester's worth of material in a slashdot post.) Spilling coffee is not an improper use; it is a reasonable expectation of something that will happen when you hand coffee to someone IN A CAR.
In your petrol example, you would commonly expect it to be transferred to a tank. During this process, it is highly suceptible to flame, cigarettes, etc. Go to your local petrol station and look for the notices about open flame and smoking.
Your last statement about how they 'are' going to be changed is just flat out wrong. The majority of tort reform is focused on malpractice in medical cases. I don't know what you do for a living, but I hope it is not law.
As a matter of law in other context, a liquid of greater than 170 degrees is considered a per se health hazard. McDonalds was selling their coffee at 175-185 degrees. You obviously didn't read the article on lect law. It's because of people like you that there is a percieved "tort" crisis. I have a legal education and I have repeatedly gone out of my way on Slashdot to explain HOW our legal system works and WHY cases like this turn out like they do. Let me put it this way: If you hand something to someone that will permanently scar them if it comes in contact with their skin, and you do not explicitly warn them of such, you are liable if they drop it. Period. That's the law in England, that's the law in Australia, and that's the law in every country where there is a common law of negligence. Have you studied comparative torts? I have. Your assertions are wrong. The McDonalds case actually comes out WORSE for the company in England. Now, piss off and come back to the discussion when you actually know something, rather than pulling ad-hoc legal arguments out of your ass. Sorry for the harsh words, but I actually *know* what I'm talking about. There are THOUSANDS of frivolous lawsuits in the US every year. Liebeck's was not one of them.
I'm sorry -- I'm not going to attempt teaching you an entire semester of Copyright law via Slashdot. I'm assuming YANAL, right?
You forgot the puzzles where you had to turn to the page number that was the solution. Invariably I once flipped through....
post an email address at which i can reach you. :)
as far as everyone else in the country goes, there are a number of books. I am compiling a list for PJ over at groklaw, and will be developing a short treatise on "law for normal people." {also look in the next few days for my "Layperson's guide to summary judgment" on groklaw, when i finish editing the celotex part}
First, I apologize for the terse words -- you have frustrated me by continuing your practice of substituting "the third branch" for "the entire US government" whenever you see fit to do so in your argument. My original post was ONLY concerning the role of judges/lawyers in the system as it currently exists.
Again, your post only further indicates what I meant. You are unhappy with the entire american system of government. Let's clear something up: When I was defending "the system" I was defending judges. From now on, please make it clear when you are talking about the american system of government (all three branches) or just the third branch.
No, judges cannot "do what is right" according to John Roberts and many others -- judges are like umpires, they call the shots. They may not like the rules, but their job is to call the shots. The legislature makes the rules. Asking judges to "do the right thing" is the very heart of "judicial activism" -- and it can backfire. (see Walker vs Birmingham -- where a judge did what he thought was right and screwed over MLK) And more notoriously, it was COMMON for jury nullification to let white segregationists in the south go free for murdering blacks or civil rights workers. All of that being said: a few points.
One of the reasons jury nullification has been argued against is that it allows the COURTS (via a jury) the power to ignore the legislature. Many federalists are against this idea. Also, jury nullification is only a concern in criminal cases -- it's not exactly a hot topic in CIVIL lawsuits.
You raised the point of lawyers fees. I agree with you about the problem of providing legal services for those that cannot afford them; Cases like Lassiter v Department of Social Services really upset me. (If you're not going to look up these cases, please let me know. I'm assuming you're intelligent and reading these, i'm not citing them for my health. The story in Lassiter is v. compelling.) But at the same time, the court once made steps to make sure there WAS equal access to the courts for all (Boddie v Connecticut) -- but this is another "mommy" problem. (The right-to-counsel is only in criminal proceedings.)
Re: InfoUSA and the junk fax link you sent. I see nothing whatosever about her claim being dismissed. What court was this in? Small claims? Federal? State? There's nothing whatsoever but an assertion that a claim was filed and dismissed without comment. An action for 500$ will be dismissed in federal court because it does not meet the "amount in controversy" if (and only if) the only reason for federal jurisdiction is "diversity jurisdiction." If she filed this in STATE COURT, then she is governed by the LAWS of the COURTS IN HER STATE -- WHICH ARE WRITTEN BY STATE LEGISLATURES. You seem to have confused FEDERAL courts with STATE COURTS. In some respects, they differ GREATLY. (Look up what a "certified question" is -- and why it is important)
Your beef seems to be primarily with the legislature; all of your arguments (save jury nullification) are attacks on the legislative process. I fail to see how the courts are to blame for the situation. Again, the third branch has only judgment -- neither force nor will. In your reply, please make clear when you are specifically discussing the ROLE OF THE COURT. Judges != legislatures.
I can almost see the Monty Python sketch...
"Wo't do ya mean, 'You're not gonna rape me'?"
He was also a big homo. [Although despite what the movies would suggest, I'm thinking he was the butchbottom type.]
There are many things about our system that are broken; I thought you were capable of discussion. Instead, you wipe the slate clean, deriding it as systematically and fatally flawed, and you sound, sir, like a crackpot. Your assumptions are wrong, and I will tolerate your tone no further. Until you learn about how the system currently works, you will continue to be frustrated, and you will never make progress as you will be fighting something that only exists in your mind.
Re: Angel v. Raich -- please read this guide:
2 3/raichVAshcroftAGuideToTheS.html
http://blogs.salon.com/0002762/stories/2004/11/
I do not agree with the court's opinion -- but I know how it got there. (Notice the "liberals" are in the majority and the "conservatives" are in the dissent.) [Re: scalia on this one is a whole other can of worms...]
The rest of your post deals with the 2nd branch. There is nothing the court can do if elected officials chose to make the laws confusing and ridiculous. (Anything otherwise would be "judicial activism"...)
You do not have an obligation to know all the laws. We have a presumption AGAINST crimes that lack mens rea in this country. (See US v Arthur Anderson or Morissette v US. But see Bailint) [Ironically, this is a judicial construction designed to protect the people from overzealous legislatures -- but I don't see anyone calling out the third branch on this one.]
This is what so fundamentally bothers me about your post. Your entire critique is of the legislature, yet you blame lawyers and the third branch for the problems of the second. We sit with neither force nor will, but only judgment. You raise the point that the "system" is broken -- it very well may be; and if it is, don't blame the courts and lawyers for what you percieve to be a fundamental defect in the entire system of american government.
All castle laws have a reasonableness component. I did an analysis of all relevant Oregon statutes, and if you'd like, I can do th same for you....
I respect you, but unfortunately you are not correct regarding your use of deadly physical force in Oregon. A few notes: Generally, existence of statutory defense to criminal prosecution does not necessarily mean that civil liability can be avoided as well. Hatfield v. Gracen, 279 Or 303, 567 P2d 546 (1977) That being said....
Then we begin with ORS 161.225.See ORS 161.219Ok. well, lets check what else might be available. Hmm, ORS 161.229.
As I've stated in other posts, the firing of a projectile weapon is considered "deadly force" regardless of if you kill the person or not. So if you shoot them as they are running and you hit them in the leg, it will be analyzed as though you had aimed for their head. (since you could have hit them in the head)
What about making a citizen's arrest?
In summation: Don't shoot people.
The discussion was about if you could just "shoot a trespasser" at will. If someone becomes violent and you have a reasonable fear of your life/serious bodily harm, you're allowed to defend yourself *anywhere* -- it's called self defense. Things that happen at night are a special case, since courts as a per-se rule consider nighttime things to be an almost automatic reasonable fear for your life. If you shoot threaten violence and they don't leave, but respond with, "You can threaten me all you want, but I know you can't hurt me because I'm not going to hurt you, and I'm unarmed" s/he would be right. Your use of force there (especially deadly force) would not be justified. What you've stated, however, is not what other people in this thread have stated. I'd agree in a large part with your analysis. I just looked up the relevant oregon statutes, and you're not exactly correct, but you're close enough. In summation: You can threaten violence all you want. If you actually become violent, there will be an inquiry into if your violence was reasonable. If you use deadly force (shooting someone is per se deadly force) you will very often lose except for limited circumstances. (Most of the other people in this thread are whack jobs who seem to think you can pop a cap in someone for traipsing across your property to pick berries. You seem far more moderate. I'd pretty much say in any situation where the person has made clear their intent to do harm, you're ok using force. There might be an inquiry into the proportionality of the force you use, but thats it. But that wasnt the context of the discussion of this thread)
I sent you an email. :)
Landlord-tenant law is very specific -- landlords have a duty to mitigate in residential settings. This is because modern property law has started to merge with contract law in the realm of leases. Depending on your jurisdiction, your landlord is probably obligated to put in a "good faith" effort to re-rent the apartment, and can charge you the reasonable costs of doing so. In a residential lease, there is no jurisdiction where your landlord can just do nothing and sit on an empty apartment and charge you. Your landlord screwed you a bit.
Re: Your phone company. They could have forced the fee -- it would have been upheld as reasonable "liquidated damages." HOWEVER -- just because a company has a right to do something doesn't mean they have to. Gossip is the best sanction -- your cell phone company was smart. You probably think highly of them and will most likely recommend them to friends, and if they do expand into your area, would you use them again?
The rationale behind all this is that in a capitalist system, part of the nature of the beast is some people make deals that turn out to be bad. I.e. I promise to buy 1000 bushels of wheat at a price, and the price goes up or down. If the price goes up, the seller would rather not sell to me. If the price goes down, I'd rather not buy from the seller. (We'd both rather get the market price.) If people were allowed to just "get out" of these situations with no penalty, there'd be no stability in the business world at all. (Every time you misestimated costs, etc you'd just breach your contract) The other problem is this: If i'm the guy who promised to buy at a certain price and the price went UP, I want to force the seller to sell to me. Likewise, If i'm the guy who promised to sell at a certain price and the goes down, I want to force the buyer to take delivery. The reason contracts have to be reasonable ex-ante is because there is always a "losing" side ex-post -- and from the "losing" side, you can always say "I'd never agree to that deal where I lose money!" [Where the winning side always says the opposite.] Does this help as to why reasonableness is judged ex-ante?
Please read the lectlaw link. She was found to be 20% negligent for exactly your reason. It was stupid for her to have the coffee in her lap. The jury found that it was MORE stupid for Mcdonalds to give someone IN A CAR a cup of liquid that would burn their skin in under six seconds, since you can easily imagine how someone in a car might accidentally spill something. If you can reasonably forsee someone hurting themselves and you can prevent it and fail to do so, that is called negligence. If you don't like the idea of being sued for negligence, I suggest you not live in any common law country, or any country with statutory negligence laws. (Basically you can forget all countries where english is the primary language, and most [potientially all] of europe.)
For a good first year criminal law outline, check out: http://www.law.northwestern.edu/sfpif/outlines/Cr
You should look at the section on Bailint and Morissette.
You do realize that your entire post is actually a criticism of LEGISLATURES and not COURTS, right?