#Precedent

[davidaugust]

“Magna Carta was issued in June 1215 and was the first document to put into writing the principle that the king and his government was not above the law. It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself.” And on July 1, 2024 the U.S. Supreme Court ended this over 800 year precedent and now says if they say a President can do it, then it’s totally legal whatever it is.

[dougielombax]

Speaking of history.

This goes without saying but it has to be mentioned in light of recent developments either way.

You can’t acknowledge one atrocity and DENY another.

You HAVE to acknowledge them all. This isn’t up for discussion or a debate.

Anyone who says otherwise is a dangerous idiot and/or a revisionist with some sort of putrid agenda in mind.

This applies universally to any and all such atrocities.

I know that sounds a bit obvious to say but you’d be surprised at the amount of people who fail to realise this.

It’s deeply troubling.

To do otherwise sets an extremely dangerous precedent.

I’ll leave an extract from a quote here by Menachem Z. Rosensaft (attorney and founder of the International Network of Children of Jewish Holocaust Survivors) concerning such attitudes:

(The context of this quote concerns denial of the Bosnian genocide)

“I cannot in good conscience condemn the perpetrators of the genocide in which my brother and my grandparents perished unless I also condemn the perpetrators of all other acts of genocide, including the genocide that took place at Srebrenica.

I cannot in good conscience mourn my brother as a victim of genocide unless I similarly mourn all other victims of genocide, including the victims at Srebrenica.”

His words sum it up rather aptly I think.

Just saying.

Edit: I mean ALL atrocities! Just in case it wasn’t clear.

[hotmess-exe]

I repeat: Happy Pride!

[the-organic-dynamic]

Ralph Wilde, Ph.D, addressing the ICJ during hearings at the Hague (February 26, 2024):

[Quotation begins around 23:22, emphases mine]

"In sum: the occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, is existentially illegal...

because ... quite simply, [it is] an exercise of authority over the Palestinian people that, by its very nature, violates their right to freedom.

This multifaceted existential illegality — involving serious violations of peremptory norms — has two key consequences:

First: the occupation must end: Israel must renounce its claim to sovereignty over the Palestinian territory; all settlers must be removed. Immediately. This is required to end the illegality, to discharge the positive obligation to enable immediate Palestinian self-administration, and because Israel lacks any legal entitlement to exercise authority..."

"...whatever it does is illegal, even if compliant with or pursuant to the conduct-regulatory rules."

[dreaminginthedeepsouth]

Mike Luckovich AJC

* * * *

Chief Justice Roberts is a liar and a racist

LUCIAN K. TRUSCOTT IV

JUN 29, 2023

You knew it was going to be him, didn’t you?  To write yet another Supreme Court decision basically saying, this whole race thing – we’re finished with it, and racism is over.  He wrote the last decision saying the same thing, Shelby County v. Holder, when he declared, essentially, that racism was a thing of the past, so we don’t need the enforcement provision in Article Five of the Voting Rights Act because it is “based on 40-year-old facts having no logical relationship to the present day,” and “our country has changed.”

That’s what Chief Justice Roberts said again today in the decision he wrote ending affirmative action in college admissions: “The student must be treated based on his or her experiences as an individual—not on the basis of race,” he wrote.  Taking into consideration “the color of their skin” when deciding who to admit into college is wrong because, in words I hope he’ll be remembered for after he is long in the grave, “Our constitutional history does not tolerate that choice.”

This is, to put it simply, a bald-faced lie.  Our entire history as a country from the day arguments began at the Constitutional Convention in 1787 has been about race.  The Constitution that was ratified in 1788 and put into force in 1789 dodged the issue of slavery with the infamous three-fifths clause, that not only permitted white people to own Black people in the Southern states but allowed slavery to spread west with the expansion of the country, directly leading to the Civil War in 1861.  That brutal conflict, which caused the deaths of more than 600,000 American citizens, led directly to the passage of the 13th and 14th Amendments, by which this country tried to make amends and deal with the original sin of slavery.  The South fought back with resistance to Reconstruction, leading to the years of the Jim Crow laws, which essentially stripped Black people in the South of rights granted to them as citizens, including the right to vote.  Segregation not only in public accommodations but in education was imposed by law in the South, leading to Brown v Board of Education, which declared that segregating students on the basis of race was illegal.  So-called massive resistance to integration followed in the South, leading directly to the passage of the Civil Rights Laws of 1957 and 1964 and the Voting Rights Act of 1965, which Roberts dismissed so handily in 2013, which led to the nearly immediate imposition of restrictions on the right to vote in multiple states, the legacy of which we are still dealing with in every election since.

Is that enough “constitutional history” and just plain old history for you, Mr. Chief Justice?  I would just like to point out that you can dismiss the history of race in this country and declare racism over only if you are a white man and you have power.

The decision of the Supreme Court today had all six Republican justices voting to end affirmative action and all three justices appointed by Democratic presidents voting against and signing a dissent.  The court’s decision and Robert’s blinkered opinion reflects an ongoing, yes historical, problem we have as citizens of the United States:  an abiding unwillingness or inability to put on the cloak of our brothers and imagine ourselves walking in their shoes.  That is all affirmative action is or ever has been – an attempt by colleges to imagine what it is like to be black or brown and do something about it. 

What we did about race for the first 175 years of our history was to use it against those whose skin color was not white.  The color of one’s skin was the one thing that many states, most of them but not all in the former Confederacy, considered when making decisions not only about college admissions, but about who to educate and how they should be educated:  white schools get this amount of money and new school books; Black schools get that amount of money and hand-me-down school books from the white schools.  Before that, during the years of slavery – part of our “constitutional history” as well, in case the Chief Justice hadn’t noticed – laws were written in the South making it illegal to educate the Black people who were enslaved by white people.  There were laws against integrating schools by race, allowing people to discriminate on the basis of race in renting or selling houses and apartments, allowing businesses to ban Black people from coming inside a restaurant, for example, and requiring them to order and pick up food from a window on the side or back of the restaurant’s building.

I could go on for the benefit of the Chief Justice, who seems to have forgotten our history of organized and legal discrimination on the basis of the color of one’s skin, but I know you get the picture. 

The court’s decision and Roberts’ decision is a lie, but worse than that, it violates what we might call the Constitution’s first commandment, found in its preamble:  We the people of the United States, in order to form a more perfect Union…”

This Supreme Court’s entire jurisprudence is an outright rejection of that commandment and an assertion that the Union is perfect enough for them, thank you very much, and if the rest of you don’t believe the way we do, then to hell with you.  Our Union is not perfect, and this decision intentionally and purposefully turns back the clock to a time in our history when discrimination on the basis of skin color was not only allowed, but in many cases, written into the laws of our states and tolerated by our courts, including the Supreme Court.

Race in this country started out as our crime, and then it became our burden.  If you don’t believe that, ask any person whose skin is not white.  Ask Black people in the South who went to schools that did not have central heating systems and cafeterias while white schools just a short distance away had both of those things.  Ask Black people who applied to colleges, or applied for jobs, or applied for a loan at a bank, or applied to rent or buy an apartment or a house. 

I’m talking to you, Chief Justice Roberts.  Take off your robes and get off your ass and go out on the streets of Washington D.C. and ask any Black person you encounter how the color of their skin has affected them.  Then go back and read your own opinion and ask yourself if “our constitutional history” has tolerated what happened to them during their lives.

[jbfly46]

Basing any legal reasoning on precedent is pure sunk cost fallacy thinking. Provide the entirety of the reasoning or GTFO.

[cherryblossomshadow]

#walrus vs fairy #my other take is that like #I see someone in a gorgeous dress with wings and pointy ears outside my door #my thought is not 'the fey are real' #it is 'we got a lost LARPer over here' #or 'oh there's a convention in town' #I see a little tinkerbell looking critter floating around #I'm going to think butterfly or cute toy on a flying drone #figuring out that this is in fact a supernatural occurrence is going to be kind of a gradual process #we're going to go through mild curiosity - what has brought this larper/toy here - to confusion to suspicion to excitement #and some boggling definitely but like. we're easing into the revelation here #surprise qua surprise kind of gets slid past #a walrus? my friends I live in an apartment. the landing outside the door is smaller than a walrus #an artificial or constructed walrus raises quite as many questions as your standard walrus #especially when the walrus as a matter of physics is spilling into my apartment somewhat #THAT'S a surprise. (tags courtesy of @souridealist)

I think if a fairy showed up at my house like yeah they are not real but there is narrative precedent for that. a fairy, if it existed, would show up at a house. i just need to suspend one disbelief everything else tracks. it's a big surprise, but a singular one. i would know how to get with the programm pretty quick.

if a walrus knocked at my door there would be many more fucking questions than one. a walrus showing up at my house? knowing that knocking is the required social etiquette? having reasons to knock on my door and somehow the ability to do that despite having no arms? said walrus coming to me of all people?? a walrus being real is the least of my concerns at that point why the fuck does it need my help what kind of problem can I solve that a socially aware and apparently findextrous walrus fucking can't

[bodhrancomedy]

Sometimes having a reputation for being smart beats actually being smart.

I once beat my school’s chess champion in a game because he spent the entire match desperately trying to work out my strategy because I was “smart” and therefore good at chess.

We were playing with a Lord of the Rings chess set. I was moving the characters I liked best.

I’m terrible at chess.

[lexlawuk]

How Judges in England Decide Civil Litigation Cases: Insights from Blower v GH Canfields

The English legal system emphasises open justice, meaning the public can generally access court documents and attend hearings. This article explores how judges in England and Wales arrive at their decisions in civil litigation cases, using the real-life professional negligence case of Sandra Blower v GH Canfields LLP [2024] EWHC 2763 (Ch) as a practical illustration. This failed professional…

[primepaginequotidiani]

PRIMA PAGINA Le Monde di Oggi giovedì, 10 ottobre 2024

[handleerz]

[podcastwizard]

because here's the thing here's the thing the question was not "would you be more surprised to run into a fairy or a walrus" the question was "would you be more surprised to find a fairy or a walrus AT YOUR DOOR" and while no, i do not believe in fairies and would be surprised to know they EXIST i would NOT be surprised to find one at my door. HOWEVER, if a WALRUS shows up at my door i have to contend with the fact that a walrus somehow made it to my apartment specifically and knocked on my door for god knows what reason. i would be more surprised to know that a fairy EXISTS, of course, but NOT that they're at my door, do you get me?

[mykl]

In almost every case, to say "this has never happened before" is to confess your ignorance of history.

[dreaminginthedeepsouth]

Judges gone wild!

ROBERT B. HUBBELL

JUL 6, 2023

          Oh, boy! This is getting out of hand! The State Department, DOJ, and Homeland Security were supposed to meet with leading social media companies on Thursday to discuss countermeasures to prevent foreign interference in the 2024 elections. Sounds like the kind of thing the federal government should be doing, right?

But those agencies abruptly canceled the meetings because a rogue federal judge in Louisiana issued an order (“preliminary injunction”) telling the government it could no longer communicate with social media companies. [Go back and read that breathtaking sentence again to let it sink in.]

          Why did Judge Terry Doughty tell the federal government not to communicate with social media companies like Facebook and Google? Because Judge Doughty believes right-wing conspiracy theory that the federal government has suppressed conservative speech on social media platforms. Even if that dubious proposition was true—it is not—the remedy issue by Judge Doughty amounts to an assault on the separation of powers in the Constitution. On a non-existent factual record, Judge Doughty restrained the federal government from performing core functions—like protecting public health and safety, preventing terrorism, and communicating with the public during emergencies.

          In a second unhinged opinion, Judge Reed O’Connor issued a nationwide injunction against a new rule restricting the sale of “weapon parts” used to create ghost guns. Apparently, Judge O’Connor wants to ensure that weapons used to kill school children will be untraceable.

          I will discuss Judge O’Connor’s ruling in tomorrow’s newsletter, but I cite it this evening to make the point that Trump-appointed judges are “flooding the zone” with bad-faith, lawless opinions that will never be affirmed. Why are those judges acting with impunity? Because they know the Supreme Court’s reactionary majority will do nothing to censure or reprimand the rogue judges. The phenomenon is yet another consequence of John Roberts exercising his leadership as Chief Justice of the United States of America. Until bad judges are rebuked and restrained by appellate courts or the Supreme Court, we will get more bad judges. It is that simple.

          Back to Judge Doughty and his egregious ruling prohibiting the federal government from contacting social media companies. Professors Leah Litman and Laurence H. Tribe have eviscerated the opinion in their article in Just Security, Restricting the Government from Speaking to Tech Companies Will Spread Disinformation and Harm Democracy. This is a must-read article for anyone who is concerned about the damage that Trump judges are inflicting on the rule of law.

          Litman and Tribe first address the fact that the state plaintiffs in the case—Louisiana and Missouri—do not have standing to bring the speculative interests of their residents in potential government censorship of big tech platforms. As Litman and Tribe explain, states have no “standing” to assert speculative and attenuated interests of their residents. Standing is a doctrine that enforces the “case or controversy” requirement that I discussed in last week’s newsletters. Standing focuses on the interests (or lack thereof) of the plaintiff, rather than the existence of a dispute per se. Litman and Tribe write,

Botching the standing analysis isn’t just a theoretical or formalistic error: the Constitution only gives federal courts the power to consider cases that involve actual disputes (also known as cases or controversies) and to redress actual injuries. If the plaintiff lacks standing, the federal court is supposed to dismiss the case. Full stop.

           But it gets worse. Judge Doughty has converted the First Amendment into a tool to prevent large swaths of the federal government from performing vital functions. Per Litman and Tribe, “To treat the First Amendment as creating something like a wall of separation between government and powerful private actors is utterly bizarre.”

          The most insulting and dishonest aspect of the opinion is the non-existent showing of any effort by the government to censor content at social media companies in a manner that violates the First Amendment. They explain,

There is also the fact that the district court made no effort to identify circumstances where the government came even close to coercing social media companies into doing something they didn’t want to do. Take the allegations concerning hydroxychloroquine. On pages 52-53 of the opinion, the district court recites the very serious allegation that the Department of Health and Human Services “suppressed speech on hydroxychloroquine” by having Dr. Anthony Fauci make “statements on Good Morning America and on Andrea Mitchell Reports that hydroxychloroquine is not effective.

          That’s it! The alleged censorship is Dr. Fauci sitting on a sofa on Good Morning America discussing government guidance regarding healthcare and vaccines during a pandemic. There is more, and it is maddening. But the government has already appealed Dougthy’s decision. If you want more details, please read the article by Litman and Tribe.

“Standing” vs. “case or controversy.”

          Before this challenging period is over, we will all become experts in the constitutional doctrines of “standing” and “case or controversy.” The constitutional requirement of a “case or controversy” necessary to invoke the jurisdiction of federal courts seems straightforward. But the caselaw is complicated because judges frequently use standing and the case or controversy requirements as a conclusion to justify the current judicial trend toward activism or restraint.

          In simple terms, there is no “case or controversy” if no dispute currently exists. A dispute can relate to a past or threatened future injury—but the dispute must be real. For example, there is no “case or controversy” if a person sues the state legislature for diminution in the value of their house because they fear the legislature might pass legislation requiring them to allow members of the public to camp in their backyard. On those facts, there is simply no existing dispute.

          “Standing” focuses on the question of whether the plaintiff has the right to assert their interest in an existing dispute. Suppose California passes the law described above and a person who owns a home in Nevada brings suit against the California legislature to enjoin the legislation from going into effect. There is an existing “case or controversy,” but the Nevada homeowner does not have standing to seek the remedy of an injunction.

          In some cases, there is no case or controversy and the plaintiff lacks standing even if there was an existing dispute. The 303 Creative web design case is a good example. There was no existing dispute (or impending threat of a dispute) because no one had asked for a same-sex website over the objection of a web designer who opposed same-sex marriage. Moreover, Lorie Smith lacked standing because she was not in the business of designing websites! Some other plaintiff who was actually engaged in the business of designing websites may have had standing, but Lorie Smith did not.

          The above explanation is a gross oversimplification, but I hope it will be helpful in sorting out the references to “case or controversy” or “standing.” For a very deep dive into the question of standing in the 303 Creative case, see Standing, Out of Nothing - by Jay Kuo - The Status Kuo (substack.com).

[ethnicassets]

-- 1858 Abraham Lincoln v Stephen Douglas, U.S. Senate debate

A psychosocial covenant - the inevitable EC of Africans in Americas #RACISM