undermining stare decisis - please critique this 1L's theory

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flcath
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Re: undermining stare decisis - please critique this 1L's theory

Postby flcath » Thu Mar 31, 2011 2:16 pm

pasteurizedmilk wrote:
Veyron wrote:Sometimes I feel intelectually meger compared to my collegues. I wonder how I will ever cut it in the world of law. Then I read shit like this and realize that most lawyers that I will be competing against are like you. My arrogance instantly returns.

Damn. That's some deep-seeded insecurity.

Your post inspired an flcath Google search to determine whether "deep-seeded" or "deep-seated" is the proper expression.

pasteurizedmilk
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Re: undermining stare decisis - please critique this 1L's theory

Postby pasteurizedmilk » Thu Mar 31, 2011 3:19 pm

flcath wrote:
pasteurizedmilk wrote:
Veyron wrote:Sometimes I feel intelectually meger compared to my collegues. I wonder how I will ever cut it in the world of law. Then I read shit like this and realize that most lawyers that I will be competing against are like you. My arrogance instantly returns.

Damn. That's some deep-seeded insecurity.

Your post inspired an flcath Google search to determine whether "deep-seeded" or "deep-seated" is the proper expression.

with what result?

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eaglemuncher
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Re: undermining stare decisis - please critique this 1L's theory

Postby eaglemuncher » Thu Mar 31, 2011 3:26 pm

deep-seated is correct

pasteurizedmilk
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Re: undermining stare decisis - please critique this 1L's theory

Postby pasteurizedmilk » Thu Mar 31, 2011 4:58 pm

Dammit.

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helloperson
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Re: undermining stare decisis - please critique this 1L's theory

Postby helloperson » Sat Apr 02, 2011 6:47 am

Veyron wrote:Sometimes I feel intelectually meger compared to my collegues. I wonder how I will ever cut it in the world of law. Then I read shit like this and realize that most lawyers that I will be competing against are like you. My arrogance instantly returns.


do the spelling errors in this post bother no one else?

Cogito
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Re: undermining stare decisis - please critique this 1L's theory

Postby Cogito » Sun Apr 03, 2011 8:36 am

Sorry to have posted in two diff. places. I figured at the time that off-topic might be more appropriate.

Re unoriginal and similarity to legal realism, I'll repeat what I said in reply to the exact same charge in the other post:

cogito wrote:The realists claimed the law was often indeterminate and decisions did not actually follow deductively from a set of rules, that judges lean rather heavily on facts rather than rules. I'm trying to make a stronger claim, that not only are decisions not a deductive science, but that stare decisis analysis of facts is essentially a counterproductive proxy for underlying policy considerations. When a judge says a pistol is similar enough to a knife to extend the holding of a knife case to the pistol case, the similarity she is identifying is not b/w pistols and knives but b/w the policy goals in those cases.

Now, I wish at this point someone would say something critical like "but that's two ways of getting at the same result" or something along these lines. That would be a fair point, and in a way it highlights exactly what I want to show. Doing a policy analysis in fact terms often leads to the same result, but the heart of the reasoning is unnecessarily camouflaged and distorted. A tortured, pseudo-objective factual analysis leaves the real substance of precedent, policy precedent, hidden, only to be sometimes discovered by a chance statement of policy in the opinion when the judge is really on the ropes.

Re old cases, Hammer and Darby are very important, well-known cases. What I want to say has to do with the logical foundation of stare decisis reasoning, and to make such a point I could theoretically go back to old English common law cases. But your point is well taken nonetheless. I do see that analyzing a more recent line of cases may have some more rhetorical punch to it. I appreciate the comment.

Re underdeveloped and poorly written, I absolutely concede that there is room for improvement in both these areas. But please, you gotta understand, a thread post on TLS forums, and one that says "this 1L's theory" in the title, is not intended to be taken as a submission to the Harvard Law Review ed board. I don't know if it's insecurity, or low self-esteem LS students making themselves feel big in a faceless forum, but your snarks are over the top and, honestly, kinda pathetic.

I wrote this as a 1L to try to make sense of what seemed like a senseless doctrine. I was reminded of the idea recently when reading a case for conlawII and realized I never received any solid counterarg. Decided to post it on TLS (prob. a mistake) to see if someone could help point out gaps in my argument. I have yet to receive any really solid constructive criticism. If you don't want to read through the essay, I can give you an absolute skeletal version:

assume: case X, which has been decided, is diff. but similar to case X', which is now before a judge
P1: judges' job is to decide whether to extend or distinguish X
P2: to decide, judges consider factual similarities/dissimilarities, theory, etc.
P3:there is no criterion for sufficient or insufficient factual likeness, or for theory applicability
P4: judge inevitably, and usually very implicitly, relies on policy considerations to bridge, or expand, the gap b/w X and X'
conclusion1: stare decisis factual analysis (and theoretical considerations) is a pseudo-objective proxy for policy considerations that are really doing all the real work in a judge's opinion
conclusion2: ignoring conclusion1, and desperate to take refuge in the shelter of "objective" analysis, the facts/theory:policy ratio ends up heavily skewed to the former, resulting in confusing precedent and exasperating inefficiency.

Again, very schematic and incomplete. This is not intended to function as an adequate substitute for the essay or my other attempts at explanation. There are obviously more in-between steps and many qualifications and nuances left out. I merely offer this to those who might still wish to offer some constructive feedback/criticism. If you're not interested in my point, do not like me personally, and/or have no intention of adding anything meaningful, please, do not waste your time. thanks.

Flanker1067
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Re: undermining stare decisis - please critique this 1L's theory

Postby Flanker1067 » Sun Apr 03, 2011 9:11 am

I have a completely different complaint, which is that the topic is obvious and uninteresting. I thought otherwise the effort was decent, and has some of the previously mentioned problems but I have read actual law review articles that are just as hard to read and get to the substance of.

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vamedic03
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Re: undermining stare decisis - please critique this 1L's theory

Postby vamedic03 » Sun Apr 03, 2011 10:14 am

Cogito wrote:Sorry to have posted in two diff. places. I figured at the time that off-topic might be more appropriate.

Re unoriginal and similarity to legal realism, I'll repeat what I said in reply to the exact same charge in the other post:

cogito wrote:The realists claimed the law was often indeterminate and decisions did not actually follow deductively from a set of rules, that judges lean rather heavily on facts rather than rules. I'm trying to make a stronger claim, that not only are decisions not a deductive science, but that stare decisis analysis of facts is essentially a counterproductive proxy for underlying policy considerations. When a judge says a pistol is similar enough to a knife to extend the holding of a knife case to the pistol case, the similarity she is identifying is not b/w pistols and knives but b/w the policy goals in those cases.

Now, I wish at this point someone would say something critical like "but that's two ways of getting at the same result" or something along these lines. That would be a fair point, and in a way it highlights exactly what I want to show. Doing a policy analysis in fact terms often leads to the same result, but the heart of the reasoning is unnecessarily camouflaged and distorted. A tortured, pseudo-objective factual analysis leaves the real substance of precedent, policy precedent, hidden, only to be sometimes discovered by a chance statement of policy in the opinion when the judge is really on the ropes.

Re old cases, Hammer and Darby are very important, well-known cases. What I want to say has to do with the logical foundation of stare decisis reasoning, and to make such a point I could theoretically go back to old English common law cases. But your point is well taken nonetheless. I do see that analyzing a more recent line of cases may have some more rhetorical punch to it. I appreciate the comment.

Re underdeveloped and poorly written, I absolutely concede that there is room for improvement in both these areas. But please, you gotta understand, a thread post on TLS forums, and one that says "this 1L's theory" in the title, is not intended to be taken as a submission to the Harvard Law Review ed board. I don't know if it's insecurity, or low self-esteem LS students making themselves feel big in a faceless forum, but your snarks are over the top and, honestly, kinda pathetic.

I wrote this as a 1L to try to make sense of what seemed like a senseless doctrine. I was reminded of the idea recently when reading a case for conlawII and realized I never received any solid counterarg. Decided to post it on TLS (prob. a mistake) to see if someone could help point out gaps in my argument. I have yet to receive any really solid constructive criticism. If you don't want to read through the essay, I can give you an absolute skeletal version:

assume: case X, which has been decided, is diff. but similar to case X', which is now before a judge
P1: judges' job is to decide whether to extend or distinguish X
P2: to decide, judges consider factual similarities/dissimilarities, theory, etc.
P3:there is no criterion for sufficient or insufficient factual likeness, or for theory applicability
P4: judge inevitably, and usually very implicitly, relies on policy considerations to bridge, or expand, the gap b/w X and X'
conclusion1: stare decisis factual analysis (and theoretical considerations) is a pseudo-objective proxy for policy considerations that are really doing all the real work in a judge's opinion
conclusion2: ignoring conclusion1, and desperate to take refuge in the shelter of "objective" analysis, the facts/theory:policy ratio ends up heavily skewed to the former, resulting in confusing precedent and exasperating inefficiency.

Again, very schematic and incomplete. This is not intended to function as an adequate substitute for the essay or my other attempts at explanation. There are obviously more in-between steps and many qualifications and nuances left out. I merely offer this to those who might still wish to offer some constructive feedback/criticism. If you're not interested in my point, do not like me personally, and/or have no intention of adding anything meaningful, please, do not waste your time. thanks.


How about you take the time to engage in some legal research and see what's already been written on this? Jurisprudence is a rather saturated field and, if you're interested in this, you would do far better researching and reading the tremendous volume of work already available than trying to spin your own theories without an adequate knowledge base.

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Veyron
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Re: undermining stare decisis - please critique this 1L's theory

Postby Veyron » Mon Apr 04, 2011 12:53 am

vamedic03 wrote:
Cogito wrote:Sorry to have posted in two diff. places. I figured at the time that off-topic might be more appropriate.

Re unoriginal and similarity to legal realism, I'll repeat what I said in reply to the exact same charge in the other post:

cogito wrote:The realists claimed the law was often indeterminate and decisions did not actually follow deductively from a set of rules, that judges lean rather heavily on facts rather than rules. I'm trying to make a stronger claim, that not only are decisions not a deductive science, but that stare decisis analysis of facts is essentially a counterproductive proxy for underlying policy considerations. When a judge says a pistol is similar enough to a knife to extend the holding of a knife case to the pistol case, the similarity she is identifying is not b/w pistols and knives but b/w the policy goals in those cases.

Now, I wish at this point someone would say something critical like "but that's two ways of getting at the same result" or something along these lines. That would be a fair point, and in a way it highlights exactly what I want to show. Doing a policy analysis in fact terms often leads to the same result, but the heart of the reasoning is unnecessarily camouflaged and distorted. A tortured, pseudo-objective factual analysis leaves the real substance of precedent, policy precedent, hidden, only to be sometimes discovered by a chance statement of policy in the opinion when the judge is really on the ropes.

Re old cases, Hammer and Darby are very important, well-known cases. What I want to say has to do with the logical foundation of stare decisis reasoning, and to make such a point I could theoretically go back to old English common law cases. But your point is well taken nonetheless. I do see that analyzing a more recent line of cases may have some more rhetorical punch to it. I appreciate the comment.

Re underdeveloped and poorly written, I absolutely concede that there is room for improvement in both these areas. But please, you gotta understand, a thread post on TLS forums, and one that says "this 1L's theory" in the title, is not intended to be taken as a submission to the Harvard Law Review ed board. I don't know if it's insecurity, or low self-esteem LS students making themselves feel big in a faceless forum, but your snarks are over the top and, honestly, kinda pathetic.

I wrote this as a 1L to try to make sense of what seemed like a senseless doctrine. I was reminded of the idea recently when reading a case for conlawII and realized I never received any solid counterarg. Decided to post it on TLS (prob. a mistake) to see if someone could help point out gaps in my argument. I have yet to receive any really solid constructive criticism. If you don't want to read through the essay, I can give you an absolute skeletal version:

assume: case X, which has been decided, is diff. but similar to case X', which is now before a judge
P1: judges' job is to decide whether to extend or distinguish X
P2: to decide, judges consider factual similarities/dissimilarities, theory, etc.
P3:there is no criterion for sufficient or insufficient factual likeness, or for theory applicability
P4: judge inevitably, and usually very implicitly, relies on policy considerations to bridge, or expand, the gap b/w X and X'
conclusion1: stare decisis factual analysis (and theoretical considerations) is a pseudo-objective proxy for policy considerations that are really doing all the real work in a judge's opinion
conclusion2: ignoring conclusion1, and desperate to take refuge in the shelter of "objective" analysis, the facts/theory:policy ratio ends up heavily skewed to the former, resulting in confusing precedent and exasperating inefficiency.

Again, very schematic and incomplete. This is not intended to function as an adequate substitute for the essay or my other attempts at explanation. There are obviously more in-between steps and many qualifications and nuances left out. I merely offer this to those who might still wish to offer some constructive feedback/criticism. If you're not interested in my point, do not like me personally, and/or have no intention of adding anything meaningful, please, do not waste your time. thanks.


How about you take the time to engage in some legal research and see what's already been written on this? Jurisprudence is a rather saturated field and, if you're interested in this, you would do far better researching and reading the tremendous volume of work already available than trying to spin your own theories without an adequate knowledge base.


Jurisprudence is also full of idiots. When the best you can do as a discipline is Hart, you have a problem.




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