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undermining stare decisis - please critique this 1L's theory
Posted: Tue Mar 29, 2011 6:05 pm
by Cogito
Repeated frustration with the reasoning style of court opinions (esp. supreme court) led to an interpretation of stare decisis as essentially a vacuouc concept effectively functioning as a proxy for policy. The theory defended here is that stare decisis inevitably lacks a logically rigorous criterion of factual likeness. Thus, at bottom, stare decisis is a kind of facade of objectivity obscuring the policy considerations that are doing the real work in the background.
Hammer v. Dagenhart, U.S. v. Darby, and some related cases serve as a historical backdrop of examples, but essentially any line of precedent can be subjected to a similar kind of analysis.
Read the piece at --LinkRemoved--
Let me know what you guys think. Thanks!
Re: undermining stare decisis - please critique this 1L's theory
Posted: Wed Mar 30, 2011 11:21 pm
by Younger Abstention
To be honest, it's amateur and underdeveloped. Those cases you use as examples are 1L hazing that no one outside of an intro to Con Law class care about. You also sound like a blowhard using all of those big words, even the top scholars don't do that. The concepts are difficult enough to understand already; write in plain English.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Wed Mar 30, 2011 11:26 pm
by fatduck
what a coincidence, i recently wrote a paper on
the exact same topic
Re: undermining stare decisis - please critique this 1L's theory
Posted: Wed Mar 30, 2011 11:26 pm
by thecilent
ibid, your honor
Re: undermining stare decisis - please critique this 1L's theory
Posted: Wed Mar 30, 2011 11:31 pm
by fatduck
i forgot to add: a fortiori, go fuck yourself.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Wed Mar 30, 2011 11:31 pm
by nealric
What you seem to be talking about isn't much different from what the critical legal theory types have been talking about for a good quarter century, and what the judicial realists were talking about almost 100 years ago.
Protip: when making a legal argument, it helps to cite precedent that is less than 75 years old unless writing specifically about legal history.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Wed Mar 30, 2011 11:37 pm
by vamedic03
Cogito wrote:Repeated frustration with the reasoning style of court opinions (esp. supreme court) led to an interpretation of stare decisis as essentially a vacuouc concept effectively functioning as a proxy for policy. The theory defended here is that stare decisis inevitably lacks a logically rigorous criterion of factual likeness. Thus, at bottom, stare decisis is a kind of facade of objectivity obscuring the policy considerations that are doing the real work in the background.
Hammer v. Dagenhart, U.S. v. Darby, and some related cases serve as a historical backdrop of examples, but essentially any line of precedent can be subjected to a similar kind of analysis.
Read the piece at --LinkRemoved--
Let me know what you guys think. Thanks!
Not trying to be harsh here but:
(1) Dramatically underdeveloped
(2) Probably not novel
I mean, this could be a starting point of a paper but:
(a) It's too expansive and overreaching
(b) You need to do a ton of research to determine where this would sit in legal academia
That said, I doubt if it's novel.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 1:25 am
by savagedm
Younger Abstention wrote:To be honest, it's amateur and underdeveloped. Those cases you use as examples are 1L hazing that no one outside of an intro to Con Law class care about. You also sound like a blowhard using all of those big words, even the top scholars don't do that. The concepts are difficult enough to understand already; write in plain English.
+181
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 1:28 am
by Veyron
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.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 1:41 am
by stonepeep
I can tell you right now that you won't be able to turn this into a good paper. It's way too broad and you're trying so hard to sound like a legal academic that it's obvious you have no experience with legal academic writing. You should develop your writing skills a lot more before you even attempt to tackle a subject as broad as this one. If something written like this came across my desk during article selection at my journal I'd shitcan it.
Also maybe it's just your terrible writing but what you've written does not strike me as novel or radical in any way. You mean no two cases are factually identical and policy choices are involved in deciding cases? No fucking way!
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:02 am
by Veyron
stonepeep wrote:I can tell you right now that you won't be able to turn this into a good paper. It's way too broad and you're trying so hard to sound like a legal academic that it's obvious you have no experience with legal academic writing. You should develop your writing skills a lot more before you even attempt to tackle a subject as broad as this one. If something written like this came across my desk during article selection at my journal I'd shitcan it.
Also maybe it's just your terrible writing but what you've written does not strike me as novel or radical in any way. You mean no two cases are factually identical and policy choices are involved in deciding cases? No fucking way!
TBF, most legal theory is similarly asinine.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:04 am
by Always Credited
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.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:36 am
by dooterdude11
Does it ever bother TLS posters that most of the stuff they say on this forum they would a) never have the balls to say to someone face to face and b) would get their asses whipped if they did?
The most "novel" thing in this thread so far are the cartoonishly over- harsh responses to the OP.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:37 am
by fatduck
dooterdude11 wrote:Does it ever bother TLS posters that most of the stuff they say on this forum they would a) never have the balls to say to someone face to face and b) would get their asses whipped if they did?
The most "novel" thing in this thread so far are the cartoonishly overly harsh responses to the OP.
dude. have you read this guy's posts? doesn't exactly scream ass-kicker to me.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:44 am
by dooterdude11
fatduck wrote:dooterdude11 wrote:Does it ever bother TLS posters that most of the stuff they say on this forum they would a) never have the balls to say to someone face to face and b) would get their asses whipped if they did?
The most "novel" thing in this thread so far are the cartoonishly overly harsh responses to the OP.
dude. have you read this guy's posts? doesn't exactly scream ass-kicker to me.
Well, it's just funny to imagine TLS-land vs face-to-face land in situations like this.
TLS-land--OP: "This is my theory. Thoughts?"
1st responder: "you are an idiot and a shitty writer."
2nd responder: "My theory is your mother should have aborted you."
3rd responder: "I am WAY dumber having read the festering, stinking bullshit you just put into my head."
Face to Face--OP: "This is my theory. Thoughts?"
1st responder: "It's interesting. Maybe you could provide more evidence, but a compelling start!"
2nd responder: "I disagree, but it is an intriguing start. Maybe work on the premises."
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:56 am
by Always Credited
dooterdude11 wrote:fatduck wrote:dooterdude11 wrote:Does it ever bother TLS posters that most of the stuff they say on this forum they would a) never have the balls to say to someone face to face and b) would get their asses whipped if they did?
The most "novel" thing in this thread so far are the cartoonishly overly harsh responses to the OP.
dude. have you read this guy's posts? doesn't exactly scream ass-kicker to me.
Well, it's just funny to imagine TLS-land vs face-to-face land in situations like this.
TLS-land--OP: "This is my theory. Thoughts?"
1st responder: "you are an idiot and a shitty writer."
2nd responder: "My theory is your mother should have aborted you."
3rd responder: "I am WAY dumber having read the festering, stinking bullshit you just put into my head."
Face to Face--OP: "This is my theory. Thoughts?"
1st responder: "It's interesting. Maybe you could provide more evidence, but a compelling start!"
2nd responder: "I disagree, but it is an intriguing start. Maybe work on the premises."
The mode of communication doesn't detract from the truthfulness of whats been said here. He posted on the internet. He should expect internet style responses.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:59 am
by stonepeep
You really think any of the comments in this thread are worthy of an ass-kicking?
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 2:59 am
by fatduck
Always Credited wrote:dooterdude11 wrote:fatduck wrote:dooterdude11 wrote:Does it ever bother TLS posters that most of the stuff they say on this forum they would a) never have the balls to say to someone face to face and b) would get their asses whipped if they did?
The most "novel" thing in this thread so far are the cartoonishly overly harsh responses to the OP.
dude. have you read this guy's posts? doesn't exactly scream ass-kicker to me.
Well, it's just funny to imagine TLS-land vs face-to-face land in situations like this.
TLS-land--OP: "This is my theory. Thoughts?"
1st responder: "you are an idiot and a shitty writer."
2nd responder: "My theory is your mother should have aborted you."
3rd responder: "I am WAY dumber having read the festering, stinking bullshit you just put into my head."
Face to Face--OP: "This is my theory. Thoughts?"
1st responder: "It's interesting. Maybe you could provide more evidence, but a compelling start!"
2nd responder: "I disagree, but it is an intriguing start. Maybe work on the premises."
The mode of communication doesn't detract from the truthfulness of whats been said here. He posted on the internet. He should expect internet style responses.
i re-read this thread and the previous thread, and i can't find anything i wouldn't say to this dude in person
honestly i think it's a lot more faux-hard to act like someone's going to kick your ass because you say their writing is dumb. really? it doesn't happen.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 3:01 am
by fatduck
stonepeep wrote:You really think any of the comments in this thread are worthy of an ass-kicking?
it's a chicken-and-egg dilemma. OP would obviously kick anyone's ass who says something remotely negative toward him, but everyone is cowering in fear of his radiating toughness, and never says anything, so the ass-kickings never occur.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 3:02 am
by stonepeep
Well shit.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 3:05 am
by Always Credited
fatduck wrote:stonepeep wrote:You really think any of the comments in this thread are worthy of an ass-kicking?
it's a chicken-and-egg dilemma. OP would obviously kick anyone's ass who says something remotely negative toward him, but everyone is cowering in fear of his radiating toughness, and never says anything, so the ass-kickings never occur.
I hope you come to geedubz
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 3:29 am
by fatduck
Always Credited wrote:fatduck wrote:stonepeep wrote:You really think any of the comments in this thread are worthy of an ass-kicking?
it's a chicken-and-egg dilemma. OP would obviously kick anyone's ass who says something remotely negative toward him, but everyone is cowering in fear of his radiating toughness, and never says anything, so the ass-kickings never occur.
I hope you come to geedubz
kinda looking that way atm
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 3:51 am
by lawfuture10
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.
Veyron is by far my favorite character on this board.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 6:01 am
by flcath
I started, but couldn't make it all the way through.
I can't comment on the substantive merit of the article (as a very, very general proposition, it's unlikely that's it's novel), but your writing style is very tedious to read.
You're probably very smart, but dude, read a well-written judicial opinion (and LR articles are even better about this) and they can be read at a consistent pace. If you have to go back through and re-read something, it's for substantive understanding, not to decipher the language. I can't say the same about your article.
If you feel like your point is too much of an intellectual push-over (either b/c it's simplistic, or empirically unsupported, or tautological) when not dressed up in shitty verbosity, then that's cause for substantive change, not burying it in verbiage.
Re: undermining stare decisis - please critique this 1L's theory
Posted: Thu Mar 31, 2011 9:05 am
by pasteurizedmilk
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.