You think USA #1 and Europe is, well, not #1?
Do you hate government regulation?
Do you despise too much power in the hands of the Feds?
Do you like all of the Bill of Rights, including the 7th Amendment?
Do you think you should be able to have your grievances heard in a Court of Law?
Then consider these cornerstones of modern "conservative" jurisprudence:
1. Europeanization of Federal Courts
The jury trial at the Federal level has been disappearing over time. Virtually every case that is filed gets a moton for summary judgement made (meaning the case can get dismissed by the judge reading paperwork in his chambers, with no live testimony of witnesses and no jury trial). Guess what kind of judge is more likely to rule in favor of a motion for summary judgment and uphold such a decision on appeal?
Now, thanks to 2 key Supreme Court decisions made over the past few years (with primarily Conservative justices in the majority and libruls in the minority), cases are much easier to get rid of at the outset by another method - with a motion to dismiss. This occurs before the bringer of the lawsuit gets a shot at developing his case through the discovery process (asking for such things as admissions, documents, and depositoion testimony). Again, the judge is reading paperwork in his office rather than sitting at the bench overseeing a jury trial. Guess where this method of papershuffling judging is the standard? Europe. So next time you hear someone whining about some librul justice dropping a reference to foreign law into an opinion, ask why conservative judges are moving our system towards the European model procedurally.
2. With litigation weakened, regulation becomes the remedy
If you get a series of wrongs that can't be remedied by litigation, guess what happens? That's right - regulaton by the government. Instead of individual plaintiffs, aided by a jury of the litigants' peers coming to what is the right thing, we get an increase of bureaucrats filling the void. If people felt they had a remedy down at the courthouse, the push for regulation may not be so intense. As the jury trial has moved towards extinction, regulation has increased significantly.
3. The pre-emption doctrine takes things out of the hands of state & local governments and puts them in the hands of the Feds
Conservative judges love to find that a Federal law pre-empts state and local law and that litigants may only pursue remedies under Federal law and not state law. This is even when Federal statutes do not clearly indicate a pre-emptive purpose. If you think the government has no power to regulate health care, how do the Feds possibly have the power to regulate medical malpractice lawsuits between a doctor and patient located in the same state? The conservative judges think more often than not that the Feds have taken over the field (in a lot of areas of law). And that puts you inEurpupeanFederal Court and slashes your state and local laws off the books in favor of Federal laws.
4. The 7th Amendment is becoming less and less forceful
The civil jury trial is disappearing. Not only do we have the problem listed in #1, but we have more and more statutes that deprive a potential litigant of a jury trial and have a massive boom in arbitration boilerplate in contracts that allow corporations to avoid facing We the People in an actual courtroom. Conservative judges are much open to a statute covering a cause of action rather than the cause being covered by common law and much more friendly to arbitration agreements.
People may like this because they think juries are untrustworthy. But if that is the case, why is it still the standard to have juries determine life and death in criminal cases? Should we move towards a more European model there? Also, you only hear about the outliers on jury trials and not the many that end up with sensible results. You also rarely hear of that crazy jury verdict that gets reduced or reversed on appeal, even though that is what happens with most of the outliers that make the news. The disappearance of the jury trial (at the Federal and the state level) means that it is less like that you will get to exercise your right to decide a dispute between your peers. It is some judge in chambers, some regulator, or some arbitration shill for a cartel of artificial corporate entities.
5. So you see a wrong and you want to sue - get ready for a court to knock you on your butt and tell you you don't have standing
The standing doctrine is a line of jurisprudence that has, over time, been used by conservative judges to keep litigants out of court. It basically says that you, as a party, do not have standing to sue because (usually) you are not facing a particularized harm. I'll concede that it may have gotten its start with more liberal judges back in the 1920's, but it really got rolling in the 1970's to keep environmental activists out of court and today it is embraced by conservative justices with liberals usually in dissent.
Today, it is fun sport to watch most birther cases tossed on standing. The birthers are so cute in their habit of spefically targeting a conservative judge or justice to consider their case. They would be better off of going to a liberal judge or justice, based on typical jurisprudence on standing.
Now, you ay say, JR, environmental crazies and birthers should not be allowed to pursue their cases. Well consider the case of the birthers - they have not really gotten a smackdown on the merits and keep filing case after case. Why not give them standing in a case and give them one swift kick on the merits? Even let a jury of their peers give them that kick. And what about the health care bill. You want that stopped, right? Well, if you sued as an individual, you would get kicked out of court faster than you could make it to the friont of the line at the DMV. The litigants that do have standing? Government officials and maybe artificial entities (corporations). You think those institutions are going to be paying for insurance or paying the penalty under the health care law? No - you are. Yet they have standing to sue and you don't.
Just food for thought. Enjoy the feast.
Do you hate government regulation?
Do you despise too much power in the hands of the Feds?
Do you like all of the Bill of Rights, including the 7th Amendment?
Do you think you should be able to have your grievances heard in a Court of Law?
Then consider these cornerstones of modern "conservative" jurisprudence:
1. Europeanization of Federal Courts
The jury trial at the Federal level has been disappearing over time. Virtually every case that is filed gets a moton for summary judgement made (meaning the case can get dismissed by the judge reading paperwork in his chambers, with no live testimony of witnesses and no jury trial). Guess what kind of judge is more likely to rule in favor of a motion for summary judgment and uphold such a decision on appeal?
Now, thanks to 2 key Supreme Court decisions made over the past few years (with primarily Conservative justices in the majority and libruls in the minority), cases are much easier to get rid of at the outset by another method - with a motion to dismiss. This occurs before the bringer of the lawsuit gets a shot at developing his case through the discovery process (asking for such things as admissions, documents, and depositoion testimony). Again, the judge is reading paperwork in his office rather than sitting at the bench overseeing a jury trial. Guess where this method of papershuffling judging is the standard? Europe. So next time you hear someone whining about some librul justice dropping a reference to foreign law into an opinion, ask why conservative judges are moving our system towards the European model procedurally.
2. With litigation weakened, regulation becomes the remedy
If you get a series of wrongs that can't be remedied by litigation, guess what happens? That's right - regulaton by the government. Instead of individual plaintiffs, aided by a jury of the litigants' peers coming to what is the right thing, we get an increase of bureaucrats filling the void. If people felt they had a remedy down at the courthouse, the push for regulation may not be so intense. As the jury trial has moved towards extinction, regulation has increased significantly.
3. The pre-emption doctrine takes things out of the hands of state & local governments and puts them in the hands of the Feds
Conservative judges love to find that a Federal law pre-empts state and local law and that litigants may only pursue remedies under Federal law and not state law. This is even when Federal statutes do not clearly indicate a pre-emptive purpose. If you think the government has no power to regulate health care, how do the Feds possibly have the power to regulate medical malpractice lawsuits between a doctor and patient located in the same state? The conservative judges think more often than not that the Feds have taken over the field (in a lot of areas of law). And that puts you in
4. The 7th Amendment is becoming less and less forceful
7th Amendment said:
The civil jury trial is disappearing. Not only do we have the problem listed in #1, but we have more and more statutes that deprive a potential litigant of a jury trial and have a massive boom in arbitration boilerplate in contracts that allow corporations to avoid facing We the People in an actual courtroom. Conservative judges are much open to a statute covering a cause of action rather than the cause being covered by common law and much more friendly to arbitration agreements.
People may like this because they think juries are untrustworthy. But if that is the case, why is it still the standard to have juries determine life and death in criminal cases? Should we move towards a more European model there? Also, you only hear about the outliers on jury trials and not the many that end up with sensible results. You also rarely hear of that crazy jury verdict that gets reduced or reversed on appeal, even though that is what happens with most of the outliers that make the news. The disappearance of the jury trial (at the Federal and the state level) means that it is less like that you will get to exercise your right to decide a dispute between your peers. It is some judge in chambers, some regulator, or some arbitration shill for a cartel of artificial corporate entities.
5. So you see a wrong and you want to sue - get ready for a court to knock you on your butt and tell you you don't have standing
The standing doctrine is a line of jurisprudence that has, over time, been used by conservative judges to keep litigants out of court. It basically says that you, as a party, do not have standing to sue because (usually) you are not facing a particularized harm. I'll concede that it may have gotten its start with more liberal judges back in the 1920's, but it really got rolling in the 1970's to keep environmental activists out of court and today it is embraced by conservative justices with liberals usually in dissent.
Today, it is fun sport to watch most birther cases tossed on standing. The birthers are so cute in their habit of spefically targeting a conservative judge or justice to consider their case. They would be better off of going to a liberal judge or justice, based on typical jurisprudence on standing.
Now, you ay say, JR, environmental crazies and birthers should not be allowed to pursue their cases. Well consider the case of the birthers - they have not really gotten a smackdown on the merits and keep filing case after case. Why not give them standing in a case and give them one swift kick on the merits? Even let a jury of their peers give them that kick. And what about the health care bill. You want that stopped, right? Well, if you sued as an individual, you would get kicked out of court faster than you could make it to the friont of the line at the DMV. The litigants that do have standing? Government officials and maybe artificial entities (corporations). You think those institutions are going to be paying for insurance or paying the penalty under the health care law? No - you are. Yet they have standing to sue and you don't.
Just food for thought. Enjoy the feast.
