Saturday, June 27, 2015

  What happened in the SC yesterday is an indication of the failure of not only our legal system but our political one as well.  The fact is that lawyers and the Judges they sometimes grow up to be do not understand what true law is as practiced by those of their profession that came before them.

  In Thomas Jefferson’s list of books that every gentleman should have in their library was Blackstone’s Commentaries on the laws of England.  The same books that Madison declared was in every man’s library present during the Virginia State ratification debate.  Blackstone’s Commentaries were the books Abraham Lincoln learned the law from and repeatedly recommended to those wishing to study the law.  My point being that this was the way law was taught and the way the law was understood by the founders and generations after them.  The common law was adopted by every State after the Revolution minus the parts that delay with the Monarchy.  

  So what would a lawyer be taught and every Judge knew before the ‘case law” method was invented in the 1870’s?  Without even getting through the second chapel of the first book they would know.
  “…the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”  

  The SC use of the 14th Amendment to come to their unconstitutional decision not only yesterday but in many cases, the other most notable one being Roe v. Wade violates the prime principle of deciding what a law means.  It is the intent of the body that enacted it.  It is not what the judges thought it meant and certainly not what the judges think it should mean.  
What the court does today and has done for sometime is use what is called the Incorporation Doctrine.  This doctrine uses the 14th Amendment by ignoring the intent and applying their own activism to apply the Bill of Rights to the States, something that was never intended.  After the 14th was ratified this scheme was tried for years but was always rejected by the courts.  In the early 20th century, it then started to creep into decided cases.  This doctrine has produced the disaster we have today, meaning Federal encroachment on States rights.

  “But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.” - Blackstone

  Of course there is nothing dubious about the wording of the 14th Amendment.  It is straight forward and had a specific purpose which was to put into the Constitution the Civil Rights Act of 1866 giving citizenship to the newly freed slaves.
The fact is the Justices on the SC routinely violate their oaths of office when they incorporate their own will into a decision.

  “It can be of no weight to say, that the courts on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”  - Hamilton Federalist 78

  What the SC has become and acts like super legislature.  Many people today including presidential contenders that believe courts make law and that is complete nonsense.  The SC needs to be brought under control.  We will see if The House of Representatives has the will or the nerve.

  “And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.” - Blackstone.
  The problem with the Founders is that they were naive to believe that Judges would always judge the law the way it is intended to be judged.  Now the law is subject to the whim of any judge, to mean what they think it means or what they want it to mean.  The law is nothing more than a suggestion, to be followed or not depending on the political leaning of the judge.  They don’t even care about their own precedents.  There is a service for lawyers that tells them what rulings are still valid and those that have been tossed aside from judicial whim.  Instead of being fixed and absolute unless changed by the legislative body, the law ebbs and flows according to time and how many appointments a certain President can make.

  “For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law.”

  The ruling by the SC is unconstitutional and like every branch of government they are governed by that document.  Any ruling contrary to the Constitution is null and void, just as any law by Congress is, and the same applies to any Order by the Executive. 

Saturday, June 6, 2015

Really? Is this how pathetic and paranoid our society has become? Obviously. "he used bad judgment. He did cause a disturbance and we can't tolerate that." Said police state spokemans Dick Donnelly. I bet if he had dressed up in a Princess Leia slave costume he would be praised for his courage. Might have even received a courage award from the city, or perhaps ESPN.
Perhaps the principle of the school should be arrested for being an idiot. Then of course that might deter other Quislings from informing to the Stasi. Donnelly shouldn't have said "score one for the Rebellion", but score one for the Empire.

Saturday, May 9, 2015

Put me back in the Matrix.

 Let me start off by saying, The Matrix is one of my all time favorite movies.  The first one, not the last two.
  I have just finished watching Jupiter Ascending.  I have to say it took me four tries to get to the end.  I kept stopping it and going back to installments of Wicked Tuna on Netflix, because I couldn’t take the silliness.
All along I kept thinking this had to be developed from a book written for young teens.  The skate like hover boots drove me crazy.  Not to mention the downright idiocy of decisions taken by the characters.  Some of it was so bizarre, I figured key points from the book had to have been left out, as is often done.

  Anyway.  I finally finish the film and I went to look up the book.  Imagine my surprise when I found out it was written by the Wachowski brothers (it’s not a book).  Errr.  The Wachowski brother and sister now.

  I won’t say anymore in case I spoil it for everyone, but who the %$$@ goes out on a balcony to look at all the pretty explosions just to get the opportunity for the balcony to suddenly detach from the building???  And don’t let me get started on the ladder rungs on the outside of buildings that separate only to be held in place by electrical wire wires. And the space ships, I refuse to even go there for fear of going into an apoplectic fit.  What engineer in their right mind would design a facility like this?

  The special effects were very good, unfortunately the story line ruined them.  I think I will watch The Matrix now just to settle down.

Friday, May 1, 2015

The Story of Pilar.

  There is so much I can say about Pilar.  I really should jot down more of the crazy stuff she says.  Even though she is a suspected android, she can be funny.
When she is not recharging, or galavanting around the country saving whales, beaches, or babies she spends time with me as my translator and Spanish teacher and assistant editor.  
  I should mention that she has a PHD in linguistics. I don’t know how many times I am going to have to sit through a lecture on verbs in the Spanish language.  So you can imagine she is a hoot to talk with about languages.  If you want to know about the simplistic syllabic language of the Anglo-Saxons an how the French gave the poor morons of ancient Britain their multi-syllabic words, she’s the one to talk with.  Mark my words. I will get an hour long lecture on ending that last sentence with, with!
  I believe she might even have multiple degrees so I am observing her for the effects of the “Kyle Conundrum.”
Despite being smart she is also very naive.  When we go out to eat she likes to order from the menu.  For most of the known world the menu would be just that “the menu.”  Here in Chile the Menu is what is on special.
Time and time again I have witnessed Pilar and Francisco order from “the menu” only to be disappointed by what they received.  Whenever Francisco starts singing happy birthday to his meal, you know he thinks it is old and no good. (see post from yesterday Fruto del Mar).  Yesterday they were going on and on about the age of the Jello they each received for their desert.  Having reached a point where I could take it no more I finally broke the bad news to them.
“You guys do know why these things are the special don’t you?”
I am answered with vacant stares. “Because it’s old food they are trying to get rid of.”
“You have just ruined lunch for me for the rest of my life.” Pilar declared.  Francisco just shrugged and ate the rest of his jello. The faint hum of happy birthday emanating from him in between spoonfuls.
I have known Pilar now for almost six years now through the internet.  We hadn’t even finished post production of Bloodmoney when she contacted me asking for a Spanish version and trying to get me to come to Chile to show the film.
According to local legend she has been telling people that I am coming to Chile for sometime now.  Like the boy who cried wolf they stopped believing her.  This last time when the plan was finally coming to fruition she was running around Santiago telling everyone.  “He is coming, he is coming.  The American is coming.”  According to Pilar Revere, she was the crazy woman running around town telling everyone about some fictional American director that was finally coming to Chile.
She wants to be paid since I use her in various stories.  Instead I will just recommend her book on Amazon.  Like most of what she tells me I have no idea what she is talking about, perhaps because it is in Spanish.  Buy it anyway, maybe I will get a lunch out of it.ónicas-enrudecimiento-ebook/dp/B00MLSC1LA/ref=sr_1_1?s=books&ie=UTF8&qid=1430490875&sr=1-1

Sunday, February 7, 2010

The Kyle Conundrum

There is a theory called the "Kyle Conundrum" hereafter referred to as KC, named after common sense theorist David Kyle. At its simplest the KC can be broken down into three primary components.

The first states that a good majority of individuals with many years of formal education and then spend additional time in academia lack common sense, and therefore will invariably come up with an idea that is completely idiotic. It has yet to be determined if they lacked common sense when they began their long academic career or it was in some way leeched out of them from the toxic liberal environment they inhabited.

The second part states that many people who hear these idiotic theories will believe them because of the credentials attached to the individuals proposing the BS.

The third principle suggests that the vast majority of people don't even hear about these absurd theories even with the Internet, which is an open forum for stupidity, nor do they care as it has nothing to do with real life.

A more in-depth explanation of the KC is as follows. It has been firmly established through observation that KC does in fact exists and perhaps is expanding at an accelerating rate proportional to the number of degrees handed out at universities around the world. There has yet to be a correlation shown that individuals with multiple degrees are more likely to state theories publically or quietly keep them to themselves for fear of ridicule by their peers.

Kyle theorizes that the brain cells of these individuals have tiny pockets in them. Voids where common sense should, or used to reside. Whether the common sense was sucked out by some at present unknown force, or it simply left on its on volition because it could no longer tolerate the environment is unknown at this time and needs further study.

Kyle also further theorizes that the voids created by the lack of common sense emit what he calls the stupidity particle. These particles circulate in the brains like free radicals never leaving the confines of the noggin they inhabit. However, as they build up they will reach critical mass at some point and overcome any natural inhibition the individual may have about submitting a stupid theory to a peer-reviewed publication.

While at present there is no device capable of measuring the stupidity particle phenomenon, the after effects of it reaching critical mass can be seen from time to time in stupid theories being made public. Kyle believes that it is more common than is revealed to the public and such theories are circulated around the scientific community. As they gain adherents to them they gather what is known as peer reviewed mass until they are eventually ejected out into an unsuspecting public.

How do we determine what theories fall into the KC? Some are known immediately, like Physicists trying to convince the world that the Bumble Bee cannot fly. Anyone with even a shred of common sense that had observed a bumble bee flying would know immediately that this was outright stupidity.

Another example of KC can be seen in Global Warming theory that took hold briefly, but is finally beginning to unravel. Everyone with common sense knew that it was hogwash, yet the so called "best and brightest" of the world stated emphatically that man was heating up the world and it was only a matter of time before we were all doomed.

There are of course many examples that demonstrate KC but will never be proven false or at least not in the lifetime of the individual making the wild claim. Examples of these are the Big Bang, Black Holes, life grew on earth on the backs of crystals, and that we live in a Holographic World.

Saturday, August 22, 2009

Bloodmoney Film

Some people might wonder why I have not done much blogging over the last year or so, some might actually be happy about it. I have been working on a documentary film on abortion and that has taken up a great amount of my time and energy. We are in the final stages right now and hope to have it complete in the next month. Yesterday we released the trailer for the film, which is called "Bloodmoney: The Business of Abortion". Please take a look and I would be interested in any thoughts you might have.

Sunday, June 28, 2009

Common Law v. Case Law

Here is a conversation that I had on Facebook about the common law and case law.  I have taken out the friends name and the name of the person I was discussing it with.  I am posting it as I think it is worth knowing.  Like the Law Student involved, I am sure my other lawyer friend's will disagree with my position, but I have no problem with people being wrong.  While I agree that case law is what is used today, it is not a system of law that our founders understood nor would they agree with it.  When Langdell began this system it took other law school well over a decade to begin teaching it.  It would be of interest to find out if it was in fact any of his students that brought it to the other schools.  It has been modified to take out the multiple posting tags and I made a couple of corrections to spelling errors in my responses.

 Friend: I got an issue of first impression today. I may leave a mark on Maryland case law today. :) Thu at 3:32

 David K Kyle at 4:04pm June 25

How many times do I have to tell, "Case law" is a figment of the lawyers imaginations. There was no such thing as case law to our founders.

 Law Student at 4:16pm June 25

Not true. The English common law, for instance—largely adopted by our Founders and still enshrined in many parts of American law—is case law

 Friend at 4:17pm June 25

I have been confused about that for a long time. What is the difference between common law and case law?

 Law Student at 4:28pm June 25

Common law, according to Black’s is “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions; caselaw.” Common law and case law are essentially the same thing.

To say that there was no case law at the time of the founding is to say that there was no law outside of statutes and Constitutions, and that is undoubtedly untrue. The English common law was highly influential during that time, and largely adopted throughout the new nation. Even today, large portions of tort law, contract law, etc., are derived from English common law adopted during the birth of the U.S.

It is, however, largely true (with a few exceptions) that there is no such thing as FEDERAL common law today. However, that wasn’t always the case. Moreover, common law (case law) has been a significant component of state law from the very beginning.

 David K Kyle at 8:33pm June 25

Judicial decision that stood the test of time and were ruled in the same way time and again. Case law is what is said by the court once. There is a big difference I would suggest you go reread your Blackstone.  Common law and case law are two completely different things period. They are only similar in the minds of people that do not know. Case law can be changed at the whim of a judge, common law can only be changed by statute according to the founders!

Law Student at 9:06pm June 25

I suggest you offer citations for your assertions. Never have I seen a definition of “case law” that confines that term to “what is said by the court once.” Nor is it true that courts are incapable of modifying the common law. Should it choose to do so, there is nothing preventing a state’s highest court from modifying the common law. The legislature is free, of course, to step in and reverse a court’s modification of common law, but there’s nothing to prevent a high court from modifying the common law in the absence of legislative intervention. If you disagree, what, pray tell, would prevent a state’s high court from doing so? Recall that the common law itself is judge-made law, and that the common law rules which are now so ingrained in our law began as rulings “said by the court once.”

Example of courts abrogating the common law: In tort law, the old common law “rule of sevens” held that children are generally considered capable of tortious behavior according to the following guidelines: children under seven are considered incapable of torts; children between the ages of seven and fourteen are PRESUMED to be INCAPABLE of torts; and children over fourteen are PRESUMED to be CAPABLE of torts. However, the high courts of several states have rejected the old common law rule in favor of a subjective standard which says that negligent children are to be held to the same standard of care of a reasonably careful child of the same age, intelligence, and experience, except in cases involving inherently dangerous activities, in which case children are held to an adult standard of care.

Citation for my previous post: See, e.g., Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979) (noting that the COURTS of several jurisdictions “have created an exception to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort”).

David K Kyle at 12:08am June 26

The courts ability to modify the common law is only a recent discovery by them. Here in MD it was done in the 70's. Read the founders, they were explicit that it is only the legislature that can change the common law. Read MD DofR art 5 to give an example of this. "That the antient collection of unwritten maxims and customs, which is called the common law" Blackstone. The common law did not come from judges but was carried out by them on a steady unwavering course from time immemorially. Hmm when is your court citation from when the court said it can change the common law? Oh yeah 1979, yes it was in the seventies when they said the same thing here in Maryland. Now find me a case where they said they could do it before 1950. If I have the time I will find where the framers said changes to the common law are the business of the legislature.

 Now what does Blackstone regarding learning the law and precedent. "the least variation from established precedents will totally distract and bewilder him." A student like Caleb can learn something in case law last month and even write a paper on it and the following month a SC can change it, therefore what he has learned as the "law" is no longer the law. The founders believed in the law being absolute. That is no longer the case. In fact look at Roe. People are worried about a change in the "precedent" of Roe with a change in the makeup of the court. Of course in the case of Roe the court changed long standing of precedent of abortion. Then in Doe v. Bolton they changed the who knows how long precedent of abortion being illegal under the common law after quickening.

 It is also a fact that there is a service that lawyers can get that tells them what "case law" is no longer valid. There again what could be used at one time is no longer valid. The system of law today is a joke as it vacillates all over the place at times solely just because of the type of person that gets put on the bench. "For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady…" Blackstone. 

 Although I have to say that the one thing where the courts do have a say in the common law is in what applies to us here. As many parts of the common law deal with the King and the church which of course would not apply and therefore have no force in our laws. That is where the founders believed our courts had a jurisdiction when dealing with the common law.

 "Edward the Confessor, out of the former laws (Molmutius's law, Mercian law, West-Saxon law, Dane law) composed that which we now call the common law. These laws were only general customs observed through the nation, which for that reason were called Common… At present the law of England is divided into three parts.

1.Common law, which is the most ancient and general law of the realm. 2. Statutes, or acts of parliament. And 3. Particular customs." – Cunningham's Law dictionary, the dictionary of choice of the founders. This is not to say that judges didn't rule on these laws, but the point is that any judge given the same set of circumstances will come to the exact same conclusions if they follow the law. They can't deviate from it because they think society is changing, or they feel they need to do social experiments. They can reject a law that violates the Constitution but they then can't substitute something in its place as they so often do.

 About your comment "Never have I seen a definition of “case law” that confines that term to “what is said by the court once.”" Are you telling me when the SC hands down a decision that it then does not become case law? Are you sure you want to make that statement?

Law Student at 8:01am June 26

None of the quotes you offer sheds light on the central question here—whether the common law is a form of “case law,” an umbrella term referring to judge-made law, which is precisely what the common law is—nor do any of your citations state in any express manner that the courts of today are somehow incapable of legitimately modifying the common law. You even go so far as to concede that courts ARE capable of determining which components of the common law—e.g., those involving references to the King or the Church—no longer hold force today, a concession that seems not inconsistent with the notion that today’s courts have a role in determining, perhaps for modern policy reasons that did not apply 200+ years ago, that the common law should be modified under certain circumstances.

 It also defies simple logic to suggest that we are somehow bound by non-legislative, judge-made law promulgated centuries ago, but that similar decisions by modern judges, who are presumably more in touch with the realities of the modern world, are somehow invalid. For what reason should we be bound by that assertion, one that, even if some of the Framers subscribed to it (and that is far from established here), was not in any way enshrined in our federal Constitution.

I also detect in your posts an ideological or political belt that is generally unhelpful in answering questions of this sort. That is something, I suspect, that you might be able to cure with a bit more open-mindedness and perhaps some legal training.

 Finally, regarding your last point, I never suggested that a single decision by the Supreme Court (or the high court of a state) is somehow not case law. Rather, I asserted only that the definition of case law is not limited to single decisions by legitimate tribunals. The term "case law" applies not only to single decisions by courts, but also to the extent to which subsequent decisions by those courts and others affirm and/or reverse prior decisions.

David K Kyle at 8:57am June 26

There is a huge difference in a court determining what part of the common law applies here in the states from that of GB and changing those parts of the common law that apply to us. Read MD DofR art 5. If you cannot see that I would have to say you have been to law school and don't want to reject what you have been taught.

My ideology is towards the Constitution as given to us by the founders. Determining their intent has nothing to do with my political leanings. Facts are facts. Have you ever read Blackstone, or do you just think you know what he says from what others have written about him?

Let me put this simply so you can understand. The common law is an unwavering expounding of the law from the courts ruling on what was established as law, not by them but by who made the law. Blackstone says "the decisions of courts of justice are the evidence of what is common law," "established by custom, which custom is evidenced by judicial decisions." There is a difference in being evidence of something and making something. Blackstone is also clear that it is not the right of judges to change the common law except in two cases, where it is contrary to reason or violates divine law. And when he says change he means to revert back to what it was after either a ruling from a judge that violates the common law or a change by Parliament.

 You quote Black's dictionary which the first edition came out in 1891 after Christopher Langdell instituted his case law method in the 1870's. How did lawyers learn the law prior to that? By studying Blackstone's works or through Americanized editions like Tuckers and by apprenticeship.

I quote the Law dictionary the founders used for their understanding of what the common law is and you reject it because it does not conform to what you have been taught. Who is being closed minded here? Check out Bouviers Law dictionary of 1856, you will find no entry for "case law" nor will you find it in Cunningham's the one the founders used and the one that Thomas Jefferson recommended for every gentleman's library.

Here is a vague reference to statute changing common law that I could find in the time I have "Is it to be the common law with or without the British statutes? If without the statutory amendments, the vices of the code would be insupportable." Madison on the Virginia Resolution.

Law Student at 10:29am June 26

I will contribute to this discussion one more round of comments and then call it a day …

You say that your beliefs are grounded in the Constitution, but you then rely not on that document, but rather on Blackstone and other materials that, at best, constitute persuasive—as opposed to binding—authority.

Moreover, your argument that the common law is somehow not judge-made law is entirely unavailing. You note that “Blackstone says, ‘[T]he decisions of courts of justice are the evidence of what is common law, . . . established by custom, which custom is evidenced by judicial decisions.’” That’s just another way of saying that judges “made” the common law based on their interpretation of what was “customary” at the time.

 Finally, I will note that your arguments—however persuasive (or not) they may have seemed to now-dead gentlemen who lived in the nineteenth century and earlier—were lost long ago. The rules you describe are not those we live under today; they are, quite simply, not “the law” in the modern age. And how this all grew out of Caleb’s entirely benign assertion that his work might have an impact on Maryland “case law,” I do not know, other than to say that your blunt assertion that “‘case law’ is a figment of the lawyers [sic] imaginations” was a silly and uninformed statement that demanded a response. “Case law” is not a controversial term, and is one that is simply used to describe judge-made law, a reality that has been a part of the Anglo-American tradition for several centuries.

 David K Kyle at 5:14pm June 26

I use Blackstone to make my points about common law and case law because it is what the founders used to understand what the common law and law was. In the Virginia Ratification debates Madison said it was the book in everyone's hands. Abe Lincoln learned the law from reading what? Blackstone as did generations of lawyers in America until Langdell came up with the case law method that took almost 20 years to be taught at another law school other than Harvard. I do find it ironic that you seem hell bent on the method of law you were taught when it was started by an unknown lawyer who did not have vast experience in the law, but only thought he knew a better way to teach it. Also if you would have read Blackstone you would know that various parts of the Constitution are taken from those commentaries, so quoting Blackstone is applicable.

 Now what is evidence? It is not the crime itself just as it is not the law. Evidence points to a crime or shows who might have committed the crime but it is not the crime itself. Blackstone uses evidence because judicial decisions should point to what the law is as intended by the framers of the law. It does not mean that they made the law only followed the law as judges are supposed to do. By your logic, when a judge confirms or follows a law passed by a legislature he is the one making the law which is absurd, he is only confirming the law.

 What I find odd in your argument is that because the law was understood to operate one way by people now long dead it is no longer relevant. By the rules of interpretation given to us by the Framers we must interpret the Constitution by the intent of those that wrote it, not by what modern man thinks. Let's take the 14th amendment as an example. For 70 years it did not make the Bill of Rights apply to the states and case after case confirmed this. Then we have the beginnings of the incorporation doctrine where judges begin to selectively apply it to fit the results they want. Sometimes it is used at other times it is not. At first it is one of the bill of rights then another to we have what we have today. Did the intent of the framers of that amendment change or did the judges in how they applied the law?

 I will agree that case law is not a controversial term now, but was unheard of until near the end of the 18th century with Langdell's creation.

While the Framers gave us only one law making branch of government, you now assert there are two. While you weave through my arguments, you fail to refute them expect to say that what dead men think no longer counts.

You call my statement silly but to do so you have to ignore the facts I present, and I will take it that you have never read Blackstone, the Federalist Papers or any of the ratification debates, if you had maybe you would have a better understanding of how the founders viewed law. The ironic thing is that you will blindly follow a dead judge, but not the person that made the law.

However, I can see that we will have to agree to disagree which is a common thing from lawyers that want to ignore the facts.

Law Student at 9:57am June 27

Dude, the bottom line is that there are three points you simply cannot legitimately refute here.

First, the common law is judge-made law, and thus “case law.” You can say that it originated long ago, that it has largely stood the test of time, that it is based in custom, or that it is derived from divine law (a rather dubious assertion, in my book), but you cannot escape the fact that it was created by judges, and not by legislatures. Repeat after me: The common law is judge-made law, the common law is judge-made law, the common law is judge-made law …

Second, many, if not most, of your arguments regarding framers’ intent were lost long ago. You may tilt at windmills all you like, but the fact of the matter is that your views do not generally reflect what “the law” is today. Time to move on …

Third, and finally, you disparage lawyers, law schools, and legal education generally, yet without acknowledging that the primary purpose of a legal education is to prepare a lawyer to do his or her job, which is to zealously advocate for the interests of his/her client under the law as it stands today—and not as dreamers or ideologues would like the law to be. Were I to enter a courtroom today and attempt to represent a client by quoting Blackstone ad nauseam, or by calling for the reversal of the incorporation doctrine, or by aggressively expounding upon the views of the framers, I would be guilty of incompetence at best, and malpractice at worst. I would almost certainly lose, and thus do a great injustice to my client.

I’m out—for real this time. Enjoy those windmills, my friend. Tilt away …

 David K Kyle at 12:57pm June 28

As final proof that I am correct consider the following and I could offer more, but in the interest of keeping it brief I will refrain from doing so.

"This Common Law, though the Usage, Practice and Decisions of the King's Courts of Justice may expound and evidence it, and be of great Use to illustrate and explain it; yet it cannot be authoritatively altered or changed but by Act of Parliament." - The History of the Common Law of England, Matthew Hale, 1713.

 Statues also are either declaratory of the common law, or remedial of some defects therein…Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges… Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges." – Blackstone.

 The Hale explanation seems to be self-explanatory. So if we take a look at the one by Blackstone, what does that tell us. If in fact the common law came from the rulings of judges, which would they not be empowered to change it. Even a small defect according to Blackstone must be done through an Act of Parliament. It would make no sense whatsoever that if judges made the law they could not correct even its smallest defect. Blackstone even makes the observance that acts of Parliament are needed to correct the common law when judges make mistakes in determining what the common law is. If the common law was the same as case law there would be no need for this is it came from the very judges Parliament is trying to correct.

 Blackstone was also clear in the role of the courts when determining the common law. "what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his own private sentiments: he being sworn to determine not according to his private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one." This is at direct odds to what case law is today.

 All of the evidence I have presented proves beyond a doubt that common law and case law are two completely separate and distinct systems. One the common law is actually based on law, while case law is based on judicial whim. Case law is a system where judges are not bound by the law but by what they think the law should be which is a far cry in how the Framers of our government provided. They knew the judicial branch to be the weakest of the three, now it is the strongest. The modern system of case law has turned our system of government on its head. We no longer have the rule of law, but the rule of judges.

 I find it amusing that you justify what is going on today because that is what is taught in law schools. You ignore the foundations of our government because it no longer applies. Who says it no longer applies, the lawyers. The ones that have benefited from it becoming the system it has become. So in your view a dictator has every right to ignore what he is doing by saying that was the old way, this is the new one, so therefore it is good. Why don't you just go ahead and say the Constitution is dead because that is in fact what you are telling me. The only problem is you and every lawyer out there, along with the ones who wear black robes wont say it because then the citizens would take notice. Instead you pretend to obey the system handed down to us by the founders and thumb your nose at it when no one is looking.

 I have refuted your notion that common law is judge made law numerous times, the problem is you hold onto what you were taught, because you have to. While I offer more proof today I can see it will do no good because you refuse to believe the facts and the truth because it goes against your worldview on what law is or should be or pretends to be. The fact is I am right. You offer no proof whatsoever to your point of view other than to tell me those old guys are dead and this is the modern way.

I just have to wonder if you get your definition of the common law from Wikipedia.