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Discendo Vox posted:I kinda want him to get stranded on the east side of DC for a couple days, just to see what it would do to him mentally. Sounds like the feel good family comedy of the year.
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May 22, 2014 02:36
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Discendo Vox posted:The really horrible part of that decision for me isn't that it's rhetorical- it's that I think those parts are meant to be genuinely explanatory and a part of the legal standard expressed. I think Roberts actually believes that poo poo. I kinda want him to get stranded on the east side of DC for a couple days, just to see what it would do to him mentally. You came in the east side on New Year's Eve ha You got stuck in that bitch and couldn't leave ha It was hard for you to breathe ha
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May 22, 2014 04:31
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Discendo Vox posted:You make some good points, but it's still a problem for me as a matter of legal practice, despite the lack of appeal and reduced odds of citation. For the lay audience (Hi Vitalsigns!), too many people are thinking that decisions like this one are what judicial opinions should be. I don't think all judicial opinions should be written like this; where would you get a silly idea like that? But I don't mind this opinion being written this way because the bigots have no actual arguments so why not call them out on the regressive poo poo heads they are? Your fears that flowerly language will somehow lead to the ruling being overturned seem...overblown, and I don't see any reason why people don't have an "absolute right" to be treated equally under the law or why an opinion that says they do should be dangerous, but I'll leave that to you to explain if you wish. Discendo Vox posted:The bigots have arguments, you just don't agree with them. I think you're right, but this doesn't mean that those arguments don't have the opportunity to succeed again. To the extent that you want to take a victory lap, a judicial opinion is the wrong place to do it. No. No they don't, their arguments are literally "gay people are gross and the government should help me treat them like dogshit". That's it, and giving it any more weight than that is part of why it takes so goddamned long to get equal rights for anyone in this country. Normally yes, the court opinion should make a clear case and be well-grounded in law for all the reasons you said, but when we're talking about grown adults throwing a big tantrum about icky gays I'd rather the Supreme Court opinion just be this. quote:Ten minutes into oral arguments over whether or not homosexuals should be allowed to marry one another, a visibly confounded Supreme Court stopped legal proceedings Tuesday and ruled that gay marriage was “perfectly fine” and that the court could “care less who marries whom.” VitalSigns fucked around with this message at 16:37 on May 22, 2014 |
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May 22, 2014 16:21
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VitalSigns posted:I don't think all judicial opinions should be written like this; where would you get a silly idea like that? But I don't mind this opinion being written this way because the bigots have no actual arguments so why not call them out on the regressive poo poo heads they are? Your fears that flowery language will somehow lead to the ruling being overturned seem...overblown... They're not. As I mentioned before, there are two objections to this decision- first, it weakens its effectiveness, and second, it's bad legal practice. Ghostboy rightly pointed out that the circumstances of the case makes its later consideration unlikely, but when the SC next hears a gay marriage case, it is very likely that the conservative justices, in the majority or the minority, will quote the ambiguous, overladen language of this decision to strengthen their own attack on the legitimacy on gay marriage. Roberts' citation of Ginsburg in Parents Involved is actually a very good example of this- but that's a much subtler example of both rhetoric and its exploitation than the decision in question, which is so unbalanced that legal reasoning is secondary to Greenwald-esque weasel words. If Jones wanted to make a clear case for the validity of same-sex couples, he should have ditched all the "clearly"s and "obviously"s and provided something more airtight. You can keep reciting that "bigots have no actual arguments", but they still are capable of counting to five- and it's still up to adjudicators, who can choose to accept the poor arguments against gay marriage that those bigots raise. The legality of equal access to marriage for same sex couples is not inevitable, nor is it irreversible. The opposing side on this topic doesn't have to win now if they can also win in thirty years. In terms of your expectations of legal opinions, I'm sorry if I overstated your position- but this sort of practice should not be acceptable at any level of the judiciary, under any circumstance. Jones is neglecting his job to exercise his creative writing skills, and that's inexcusable. If it were possible to better regulate the behavior of adjudicators(and I suspect it is not), this sort of behavior would be grounds for a disciplinary response. VitalSigns posted:...and I don't see any reason why people don't have an "absolute right" to be treated equally under the law or why an opinion that says they do should be dangerous, but I'll leave that to you to explain if you wish. From a legal perspective, there are no "absolute rights" under the Constitution- it's not a concept that normally appears in legal discourse because it's too dysfunctional. Absolute rights aren't balanced against any others- they are, like the word indicates, completely absolute. An absolute right to equal treatment under the law would, if fully applied, prevent criminals from being treated differently from the innocent, men from being identified separate from women, minors from adults. If this seems nonsensical, that's because it is-categorical rights aren't functional, but their rhetorical invocation has the effect of obscuring the actual standards and criteria via which rights apply. This is one of the difficulties of the pure deontological framing of legal standards- it invites an unclear expression of the borders of "rights". It allows us to feel strongly about moral desert, while making our claims, and our actions, resistant to reasoning or compromise. This is a Bad Thing- it's the approach to moral philosophy that brings us sovereign citizens, Objectivists and whatever the hell Ron Paul really is behind closed doors. VitalSigns posted:No. No they don't, their arguments are literally "gay people are gross and the government should help me treat them like dogshit". That's it, and giving it any more weight than that is part of why it takes so goddamned long to get equal rights for anyone in this country. Normally yes, the court opinion should make a clear case and be well-grounded in law for all the reasons you said, but when we're talking about grown adults throwing a big tantrum about icky gays I'd rather the Supreme Court opinion just be an article from the Onion. I understand you feel strongly about this issue. Maybe try this: imagine if the Court issued a similarly phrased opinion invalidating gay marriage. Imagine that they similarly ignored the arguments and evidence you presented and just attacked you directly. You would correctly feel that the legal system that was supposed to consider and represent your side was illegitimate. This would damage your belief in the legitimacy of the legal system as a whole, and rightly so. The Court would be doing the exact opposite of what it's supposed to do. I'm not willing to undermine the norms of legal jurisprudence, and the rule of law generally, because I feel particularly strongly about a given issue. That's a really bad way to do things- not destroying systems for individual cases is one of the basic reasons why we have a justice system in the first place, to promote consistency and the inclusion of opposed voices in the elaboration and judgement of the law. Discendo Vox fucked around with this message at 21:43 on May 22, 2014 |
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May 22, 2014 21:34
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You pointed out the "ash heap of history" quote, but that rhetorical flourish was at the end of the opinion. What particular rhetorical flourishes are you taking issue with that actually muddle the legal analysis in these cases? (My word search of Judge Jones' .pdf opinion shows that it contains only one use of the word "clearly," but in a quote, and no uses of the word "obviously.") I've generally only skimmed these opinions, but nothing as striking as "ash heap of history" ever jumped out at me in, say, Section IV.B.1.a entitled "Indicia of Suspectness." That is, I don't recall ever thinking that the legal analysis was muddled because of some sort of "creative writing" lingo being substituted in for a cold and distanced tone. Instead, such flourishes have always been at the beginning or end of the opinion, when the court is clearly not engaging in a legal analysis. I don't see why humanizing a legal holding after going through the analysis -- which itself was without ambiguous and confusing rhetoric derived from "creative writing skills" -- constitutes grounds for judicial discipline.
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May 22, 2014 22:04
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Green Crayons posted:You pointed out the "ash heap of history" quote, but that rhetorical flourish was at the end of the opinion. What particular rhetorical flourishes are you taking issue with that actually muddle the legal analysis in these cases? There is quite a bit of it in the reasoning, though it's not as infuriatingly blantant- it mostly consists of suggestive word choice that invokes, but does not state, standards, as well as formular rhetorical maneuvers such as litanization that Jones is probably using without even noticing. The more general problem, though, is that the end and the beginning of the decision aren't somehow exempt from the norms of legal writing; there's no distinction between dicta and decision. Other courts are free to cite and use any part of the decision, which is what Roberts does in Parents Involved. This is why you see a lot of jurists accusing each other of "citing dicta". Jones is using "ash heap of history" because he's hoping that part gets cited- although that's going to be trouble if anyone points out that it implies a historicist framing of the issue.
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May 22, 2014 22:20
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Discendo Vox posted:There is quite a bit of it in the reasoning, though it's not as infuriatingly blantant- it mostly consists of suggestive word choice that invokes, but does not state, standards, That's fine. I just want to see the "creative writing skills" in the legal reasoning bits that has you so upset. Please provide examples. quote:as well as formular rhetorical maneuvers such as litanization that Jones is probably using without even noticing. I don't know what this means. quote:The more general problem, though, is that the end and the beginning of the decision aren't somehow exempt from the norms of legal writing; there's no distinction between dicta and decision. Well, yes, there is a distinction between dicta and decision. And I know you have an argument about jurists disagree over what is actually dicta in any given case. But that's really beside the point. An introductory or conclusion rhetorical flourish that is completely separate from the legal analysis sections is, at best, a thesis statement that has no direct bearing upon the actual legal analysis. Your fear of people citing "ash heap of history" as part of their legal analysis of whether, say, homosexuals are an insular and discrete minority, is perplexing because it does not relate to the any legal analysis. That is, it's irrelevant to the legal analysis in the case in which the rhetorical statement itself was made. So it instead looks like you're upset that the opinion contains some humanizing language in the non-legal analysis sections. quote:Other courts are free to cite and use any part of the decision, which is what Roberts does in Parents Involved. I don't know what specifically you're referring to when you invoke Parents Involved. Roberts cited, in his legal analysis, an introductory or conclusion statement that was not part of a legal analysis in a prior case? quote:This is why you see a lot of jurists accusing each other of "citing dicta". Jones is using "ash heap of history" because he's hoping that part gets cited- although that's going to be trouble if anyone points out that it implies a historicist framing of the issue. This is projecting quite a bit. I have no idea what Judge Jones was thinking when he used the phrase "ash heap of history," but my guess is that it was for laypersons who he knew would be reading the opinion and not with a hope that an appellate court would go, "by golly, I'm going to quote that particular phrase!" I don't know why you're assuming its the latter rather than the former. I'm also not sure what you mean by "a historicist framing of the issue."
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May 23, 2014 03:05
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Green Crayons posted:That's fine. I just want to see the "creative writing skills" in the legal reasoning bits that has you so upset. Please provide examples. At 28, "That the gay and lesbian community has endured historical discrimination at the national level is uncontested." OK. That's adequate. The point isn't contested. You can give a cite to demonstrate that it's settled. Jones spends a page giving detailed examples. There's some interesting stuff where the Defendants tried to avoid it by arguing for geographic context, that gets half a page and a really badly phrased footnote. At 29, "Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on bars, clubs, and private homes; portrayed by the press as perverts and child molesters; and victimized in horrific hate crimes." There's no need to litanize examples of police harassment, it's already cited to another case. The word "horrific" is used purely to increase the valence of "hate crimes", which is not a word that needs it. At page 32, from the Relation to Ability section: "Defendants’ silence on this point speaks volumes, and either connotes candor, agreement with Plaintiffs, or both." The sentence doesn't need to exist- All Jones needs to say is that the point is uncontested, or that Defendants are silent on the issue. These are things that people do when they're writing expressively or persuasively, and they're structural rhetorical methods. If Jones was being dispassionate about the case, or even if he was just trying to write an opinion that seemed dispassionate, these choices would not have been made. Jones isn't trying to hand down a legal decision, he's trying to make a point- and that screws with the law. Green Crayons posted:Well, yes, there is a distinction between dicta and decision. And I know you have an argument about jurists disagree over what is actually dicta in any given case. But that's really beside the point. An introductory or conclusion rhetorical flourish that is completely separate from the legal analysis sections is, at best, a thesis statement that has no direct bearing upon the actual legal analysis. Green Crayons posted:Your fear of people citing "ash heap of history" as part of their legal analysis of whether, say, homosexuals are an insular and discrete minority, is perplexing because it does not relate to the any legal analysis. That is, it's irrelevant to the legal analysis in the case in which the rhetorical statement itself was made. Green Crayons posted:So it instead looks like you're upset that the opinion contains some humanizing language in the non-legal analysis sections. Green Crayons posted:I don't know what specifically you're referring to when you invoke Parents Involved. Roberts cited, in his legal analysis, an introductory or conclusion statement that was not part of a legal analysis in a prior case? Green Crayons posted:This is projecting quite a bit. I have no idea what Judge Jones was thinking when he used the phrase "ash heap of history," but my guess is that it was for laypersons who he knew would be reading the opinion and not with a hope that an appellate court would go, "by golly, I'm going to quote that particular phrase!" I don't know why you're assuming its the latter rather than the former. Green Crayons posted:I'm also not sure what you mean by "a historicist framing of the issue." Let me be clear here. I agree with the outcome of the case- I support the cause of equal access to marriage. I think the way it was presented, for any audience, was really lousy- both for advocates on the issue, and for a legal system that depends on at least the appearance of equanimity. This case is frustrating because I do agree with the outcome, but I disagree with people cheering for this sort of opinionated approach to legal practice- this is exactly the same sort of  that makes Scalia and Roberts so infuriating. It should be no more tolerable when it's being done by "our side" than when they do it.OK, that was a wall of text. How 'bout a new topic- which Justice, active or retired, do folks think will die next? Which one do you hope will die next?
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May 23, 2014 07:05
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I still don't get what you think can be negatively used in the decision. Yes, he used extra flourish. However, everything he said was 100% accurate according to your breakdown. Adding in poignant examples of discrimination actively adds evidence that the discrimination exists. Simply saying "there is no argument that discrimination exists" without providing adequate proof is poor form. It strengthens an argument significantly to add evidence to support what you're saying. I guess what I want to know is - what can be negatively used by what he wrote? How is something that even you feel is factually and wholly accurate going to be used in a negative way?
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May 23, 2014 14:25
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So this doesn't become a quote wall back-and-forth, I'm going to group your responses together to respond to your main points. Also, I'm not questioning your agreement with the outcome of the case, so please put those fears aside. I'm much more interested in the question of the propriety of judicial opinions containing certain language.Discendo Vox posted:OK, here's a couple from sections I suspect you believe are part of the legal reasoning. I see your point insofar as you're stating that these sentences could have been phrased differently. I just don't see how these sentences, as written, are going to create ambiguity or confusion that your preferred style would avoid. Also, I'm not entirely sure that legal opinions should be completely devoid of passion. Law affects people in real ways, and judges -- especially trial court judges, as Judge Jones is -- must strike a balance between cold detachment and recognizing the fact that their job fundamentally changes people's lives. So, in opinions, although clear and concise language is paramount, I think it's appropriate to acknowledge the fact that judges aren't robots. To that end I disagree that, if these sentences are examples of a "creative writing style" infecting a legal analysis (perhaps better phrased as the judge going for style over substance in his legal analysis), that this type of opinion should be grounds for discipline. There's also a difference between making a judicial opinion persuasive, and making it a stump speech. Although I'm far from a legal realist, the law is not just some absolute truth existing in the ether. The judiciary as a whole must persuade the public (and the other branches of government) that their opinions are justified and binding. Sometimes this requires cold and detached application (of, say, the Bankruptcy Code). Sometimes it requires the use of more relatable vocabulary. quote:If jurists can choose which part of a decision is dicta and which part is analysis, then yes, the inclusion of rhetoric that can be treated by later jurists as analysis is a problem- and that's what happens. Dicta isn't defined by being in the introduction or the conclusion of the decision, and analysis isn't excluded from those portions either. If subsequent jurists can manipulate this, (and they do), then the distinction is itself, in function, a rhetorical one. Obviously there's not a firm rule that legal analysis will not be in the introduction or conclusion of any given opinion, but as a matter of course that's what happens just by the nature of how opinions are written. Of course, nothing exists to stop a future court from citing any portion of an opinion except for the need for such a citation to be relevant and persuasive. And those are two enormous barriers to citing a purely rhetorical flourish that is detached from the legal analysis (e.g., "ash heap"). quote:That's the problem- Roberts cites and distinguishes Grutter as being exclusive to higher education, particularly at page 13. He does this by manipulating language in the Grutter opinion that was intended to sell the purposes of the program being upheld. Roberts takes rhetorical language not strictly necessary to the standard in Grutter and uses it to reduce its scope. Wait. Grutter was about higher education. The Grutter Court was discussing whether race could be used in the higher education admissions process. It was therefore appropriate for the Grutter Court to discuss whether the use of race (to promote diversity) in the context of higher education was a compelling government interest for the purposes of strict scrutiny. I don't see how that holding from the Grutter Court was dicta (I don't think it was), much less a rhetorical flourish that Roberts' manipulated to his advantage only because it was an unnecessary addition to the Grutter opinion. Also, I find it strange that you compared Judge Jones' opinion to Justices Roberts and Scalia. If anyone on the Court utilizes vague and overbroad statements that muddy the water of just what the hell future courts are supposed to do, it's Kennedy. Seriously, Kennedy is a bad writer.
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May 23, 2014 14:45
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Discendo Vox posted:That's the problem- Roberts cites and distinguishes Grutter as being exclusive to higher education, particularly at page 13. He does this by manipulating language in the Grutter opinion that was intended to sell the purposes of the program being upheld. Roberts takes rhetorical language not strictly necessary to the standard in Grutter and uses it to reduce its scope. Well he does and he doesn't - he does distinguish Grutter, but only after he assimilates (or conflates) school desegregation law into affirmative action law, which is the greatest trick ever pulled since Roberts convinced his eighth grade English class he didn't exist.
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May 23, 2014 15:45
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Green Crayons posted:Seriously, Kennedy is a bad writer. I think it's just Windsor. My interpretation is that he couldn't write something that would change federalism too much to avoid becoming a concurrence to a Ginsberg plurality, but didn't want to utter "heightened scrutiny" yet either.
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May 23, 2014 16:58
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I don't want to further derail the thread, so I think I'll stop pushing it here. Green Crayons, I think our disagreements do map down to a difference in terms of where we land on the Realist-Formalist spectrum- I'm way out at near the formalist end, as folks can probably tell, so I view the persuasive aspects of judiciary decisionmaking as procedural and minimal. I view the robotic, dispassionate judicial opinion as an ideal that should be pursued by all jurists. For example, w/r/t Jones's discussion of discrimination for the classification of homosexuals under the constitutional analysis, there's precedent and a separate showing of discrimination, and there is no dispute on the point in the case, so there's no reason to provide more evidence- the circumstances make it a structural decision, not one requiring a burden. The reason I bring up Scalia and not Kennedy is because I object to almost any informal language in decisions- Scalia and Roberts fold rhetoric into their decisions with a tremendous amount of , but that makes it no less objectionable than Kennedy's more openly informal writing (and I disagree with Scalia and Roberts more, so it's easier for me to spot). I keep including the viewpoint disclaimers because I've had folks accuse me of being racist/homophobic/etc when I was actually trying to split hairs about related, but distinct issues-I think it's how I got my magnificently ambiguous custom title. The Warszawa posted:Well he does and he doesn't - he does distinguish Grutter, but only after he assimilates (or conflates) school desegregation law into affirmative action law, which is the greatest trick ever pulled since Roberts convinced his eighth grade English class he didn't exist. Yeah, I can't hate Roberts quite as much as Scalia because he comes up with these incredibly devious tricks that look valid on their face. Scalia just uses an openly inconsistent "theory" approach, which I view as more damaging to the integrity of jurisprudential practice. (Given how much he comes up in my posts, no prizes for guessing who tops my SCOTUS Death Pool!)
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May 23, 2014 20:52
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Discendo Vox posted:I view the robotic, dispassionate judicial opinion as an ideal that should be pursued by all jurists. I'm guessing this just makes your skin crawl, but for a non-lawyer like me it's actually a great read (also it's  but they're dealing with insanity we've exported).
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May 23, 2014 21:02
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Munkeymon posted:I'm guessing this just makes your skin crawl, but for a non-lawyer like me it's actually a great read (also it's Enh, I don't know enough about jurisprucence in Canada to know if the same standards should still apply. At a minimum, the decision is providing a full narrative of the case, and it's got a clearer format and structure. I like those features, and I've observed them in UK decisions too. The extensive factual and background recital makes more sense- and I understand it's a normal feature of cases in that system. The use of the first person is disconcerting, but can have merits in maintaining the limited identity of the court. What exactly in the decision should I be objecting to? If you're referring to the stuff at the end, yeah, I'd like less of that, but the different format practices make it harder to avoid because the judge recounts their in-person actions. The case itself was irregular enough in its contents that it's hard to know what to do with it. I'm guessing Rooke had the same problem. Discendo Vox fucked around with this message at 21:48 on May 23, 2014 |
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May 23, 2014 21:44
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http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?_r=0quote:WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon. This sounds kinda wonky; have their been any cases that were seriously 'walked back' by a supreme that didn't like what the reaction was?
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May 25, 2014 22:30
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Gerund posted:http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?_r=0 They don't need to be walked back for it to be a big deal. The presence of contradictions between records of supreme court cases is very troubling- I had no idea it was so widespread.
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May 26, 2014 00:03
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Discendo Vox posted:They don't need to be walked back for it to be a big deal. The presence of contradictions between records of supreme court cases is very troubling- I had no idea it was so widespread. While I agree that the existence of inconsistent versions of opinions in circulation is troubling, I didn't see any particularly damning examples. It's possible I missed it skimming the article, but the changes noted in the article all seemed to be non-presidential: O'Connor's statement of Scalia's opinion on something, Kagan's incorrect factual assertion in dicta, etc.
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May 26, 2014 14:43
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Yeah, I agree, it could be infinitely worse. It's problematic mostly because it demonstrates the betrayal of some of the assumptions that underlie modern jurisprudence, and the rule of law- the consistency and availability of the law to citizens and practitioners. It's especially weird and bad that the Supreme Court's own site doesn't have correctly updated info. These changes aren't especially hard to maintain, especially in comparison with some other areas of legal recordkeeping.
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May 26, 2014 15:33
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Honestly, the only real problem with it is that it's done silently, not that it's done - they really ought to at least issue errata or black lines or something to show it was changed.
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May 26, 2014 22:53
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Kalman posted:Honestly, the only real problem with it is that it's done silently, not that it's done - they really ought to at least issue errata or black lines or something to show it was changed. No one expects the court to issue perfectly edited stuff, the entire problem the article identified is that they are silently editing non-trivial parts of binding legal documents with no kind of publicly-available edit history. I don't think it's problematic as long as they're basically doing corrections. Editing important parts of decisions after the news cycle has moved on, or using it as a way to quietly fix incorrect statements of fact is pretty sketchy though. It smacks of the court getting it wrong and then burying the mistake. On the other hand it's pretty difficult to actually tell what they're doing right now, because it's all happening behind closed doors. Opening up the edit history shouldn't really be a problem for them, but then we're talking about a group of people who don't like cameras. Paul MaudDib fucked around with this message at 23:16 on May 26, 2014 |
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May 26, 2014 22:56
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Kalman posted:Honestly, the only real problem with it is that it's done silently, not that it's done - they really ought to at least issue errata or black lines or something to show it was changed. There is a system and policy for promulgating the changes, which is why Lexis and Westlaw had at least some of them recorded- the problem is that the process is isn't universalized and consistent. Another product of a state of affairs in which the publication of caselaw is effectively privatized.
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May 26, 2014 22:56
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Discendo Vox posted:There is a system and policy for promulgating the changes, which is why Lexis and Westlaw had at least some of them recorded- the problem is that the process is isn't universalized and consistent. Another product of a state of affairs in which the publication of caselaw is effectively privatized. They aren't recording the changes though - there's no way to look through Lexis and see that revision B of case 14-34835 changed three lines in paragraph 27. There's a system for silently propagating the new revisions, which isn't the same thing. Paul MaudDib fucked around with this message at 23:15 on May 26, 2014 |
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May 26, 2014 22:59
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The big problem is obviously transparency. That said, apart from typos, which happen no matter how many eyes you have look at a page, I find it pretty crazy that other types of revisions have to actually occur. Like, doesn't each Justice have at least four other Justices, plus their respective cadres of law clerks, look at this stuff (obviously not applicable to non-majority opinions)? I wonder if someone from the Reporter of Decisions (or similar office) gives the opinions a once over to provide an independent verification of claims asserted? I am aware of two state supreme courts that employ such a third party editor to ensure decisions say what they mean and can stand by those factual/legal assertions. edit: It's hard to believe that nobody pipes up with a "are you sure about this?" I wonder how much is editorializing changes -- as opposed to corrections -- that wouldn't be able to be "caught" before initial publication.
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May 27, 2014 01:23
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The problem I see is that if I quote from a SCOTUS opinion in a piece of my own legal writing, the quote might have changed when someone else looks it up later. It's easy for me to envision a scenario where I quote something SCOTUS said, the case goes up on appeal, but by then the quote has changed and, I'm no longer quoting SCOTUS. Worse, how would anyone know? The whole system rests on the notion that I can cite something and you can go look it up and see that I'm not fabricating precedent. If the quote changes with no warning, citations to it look anywhere from incompetent to disingenuous. Other courts have mechanisms in place to correct these sorts of errors. It's not unheard of to see an appellate court issue an order changing something in the text of an opinion -- but it's an order and becomes part of the record. Similarly, if my judge needs to change something, we do an order nunc pro tunc, changing it after the fact. That's part of the record, too.
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May 27, 2014 01:55
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Green Crayons posted:The big problem is obviously transparency. Yes, the record keeping office(I forget what the official name is) does proofreading and checks citations in preparing the opinions for publication. I'm not sure if they would fact check officially, but I'm sure that informally they might send a note back in egregious cases. The office is kind of understaffed, though, since it's just 4 people or so in charge of preparing the opinions for publication. There seems to be a lot of conspiracy nonsense in this thread about corrections after publication. The important thing to remember is that the SCOTUS process is loving old, and it only became practical recently to make entire edit histories available to the public. Keeping every revision on paper in perpetuity as some are suggesting they should have been doing is madness. With modern day computer systems, though, I would support them making an archive like that available. There doesn't seem to be anything especially conspiratorial about it, though. Paul MaudDib posted:Opening up the edit history shouldn't really be a problem for them, but then we're talking about a group of people who don't like cameras. Cameras add nothing to the experience whatsoever. MP3's of SCOTUS proceedings are available on their website. Transcripts are available. I don't see what making video available would add to the experience. SCOTUS is already a lot more accessible than other bodies or court proceedings as it is. They've considered cameras, and they decided they would add nothing. It isn't out of some hatred of technology, and painting it like that is profoundly dumb. ErIog fucked around with this message at 02:48 on May 27, 2014 |
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May 27, 2014 02:46
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ErIog posted:Keeping every revision on paper in perpetuity as some are suggesting they should have been doing is madness. I don't see why that's the case. For any given revision, when it's made, it's now the official version, so presumably it has to be filed/copied/indexed/whatever in all the appropriate places, so that it's a proper part of the record. It seems like "don't throw out the old ones" is all that'd be required to maintain a complete history. Haven't newswire services maintained article history for revisions for a long time? At least some of them basically sent diffs, as I understand it.
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May 27, 2014 03:25
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ErIog posted:Cameras add nothing to the experience whatsoever. MP3's of SCOTUS proceedings are available on their website. Transcripts are available. I don't see what making video available would add to the experience. SCOTUS is already a lot more accessible than other bodies or court proceedings as it is. They've considered cameras, and they decided they would add nothing. It isn't out of some hatred of technology, and painting it like that is profoundly dumb. Cameras don't add anything to congressional proceedings either, yet C-Span remains a good thing. Cameras detract nothing and the people want video, so why not give them the video if it's an irrelevant distinction from sound recordings?
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May 27, 2014 03:45
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Gyges posted:Cameras don't add anything to congressional proceedings either, yet C-Span remains a good thing. Cameras detract nothing and the people want video, so why not give them the video if it's an irrelevant distinction from sound recordings? Have you thought about the thing you just said here? Have you watched C-Span? Video adds quite a lot to congressional proceedings since there's so many members of the body, and much of the business of voting is not captured via the audio alone. The Supreme Court on the other hand is a small handful of people talking to each other one at a time in a pretty well-controlled fashion where all the audio is already available. C-Span video adds a lot, and before C-Span the congressional proceedings weren't widely accessible even via just audio. In this case, the Supreme Court stuff is already widely available via audio. Video literally adds nothing since you can look at the briefs filed, look at the transcripts, and listen to the audio. The only thing it would lead to is people being vain and more prone to try to grandstand. Thank you for conceding the point that it wouldn't add anything, though.
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May 27, 2014 03:54
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Man, I'd love it if C-SPAN got out of congress, too. The public broadcasting of the proceedings of congress, especially panel hearings, ensures that nothing substantive gets done. Just to be clear, I'm not suggesting conspiracy or intentional subversion of the public legal record- I just think these problems could be avoided if the US had a centralized, public, uniform system of publication for court decisions (like several other countries in Europe appear to have). It's the fracturing into private and public publication systems, and the dominance of the big two, that makes this sort of systemic error probable. edit: Alaemon isn't alleging conspiracy, either- he captures the problem quite well. If I erroneously cite to an outdated version of the case in my legal work, it looks like I'm either incompetent or manipulating the record. What's worse, it wouldn't surprise me at all if courts are making the same mistakes! Discendo Vox fucked around with this message at 04:07 on May 27, 2014 |
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May 27, 2014 04:03
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Discendo Vox posted:I just think these problems could be avoided if the US had a centralized, public, uniform system of publication for court decisions (like several other countries in Europe appear to have). It's the fracturing into private and public publication systems, and the dominance of the big two, that makes this sort of systemic error possible. What, like the U.S. Reports, which are the authoritative final version and are a public publication of SCOTUS decisions? The reason we have private publications is because the US reports take time to publish, not because there isn't a centralized public authoritative system.
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May 27, 2014 04:08
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Discendo Vox posted:Just to be clear, I'm not suggesting conspiracy or intentional subversion of the public legal record- I just think these problems could be avoided if the US had a centralized, public, uniform system of publication for court decisions (like several other countries in Europe appear to have). It's the fracturing into private and public publication systems, and the dominance of the big two, that makes this sort of systemic error possible. I agree with you, and think the correction process should be more transparent now that computers make it trivial to keep track of this stuff. I just disliked some of the hyperbolic "What if a justice amends a decison in order to completely change the nature of it!" kind of sentiment that happened a little bit earlier in the thread. That seems like it was mostly coming only from Paul MaudDib, though. Your concerns over the privatization of the process I think are well-founded, and they weren't really what I was arguing against. I should have quoted Paul MaudDib, but I was being lazy.
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May 27, 2014 04:10
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Kalman posted:What, like the U.S. Reports, which are the authoritative final version and are a public publication of SCOTUS decisions? Yes, except I want it to apply to all US court systems, be properly maintained and integrated, and not have such a time delay that there is a void filled by five to ten alternate decision databases. It's quite doable- the current system is massively duplicative and spread between a wide number of companies. It really should all be in one place.
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May 27, 2014 04:14
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Kalman posted:What, like the U.S. Reports, which are the authoritative final version and are a public publication of SCOTUS decisions? Well, we do live in the 21st century, and the Supreme Court is more than welcome to, as head of the federal court system, establish its own electronic publication system bypassing the private reporters.
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May 27, 2014 04:15
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Discendo Vox posted:
I write for a court, so that's exactly my concern. Like the recent Scalia misstep -- that one was so public that it wasn't an issue. He misstated a point, got called on it, corrected it. But if people hadn't noticed? Some hardworking and devilishly handsome research attorney/clerk sees that case, thinks it's exactly on-point, and cites to it. In the meantime, the text of the SCOTUS opinion changes, but because no one else has a way to check, the change goes unnoticed. And the new opinion being written cites to a quote that no longer exists, and that has fallen down the proverbial memory hole (that makes it sound more sinister than I think it is - I think the real dangers of this process are not intentional, just accidental). Then this "bad" quote gets promulgated into the law. If it's an appellate court using it, it's conceivable that this opinion -- which turns on faulty reasoning (through incorporating the quote) and cites to something nonexistent, gets cited itself. And then the mistake gets perpetuated. All it takes is what so many other courts do -- and it doesn't become an issue of "Keeping every revision on paper in perpetuity as some are suggesting they should have been doing is madness," either. quote:Order Nunc Pro Tunc That's not prohibitive in terms of space. You're just creating a record as to what was changed and when.
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May 27, 2014 04:26
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Alaemon posted:good This is highly analogous to a phenomenon I'm trying to end in the sciences. It happens whenever citation is fluid and the system of records is siloed.
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May 27, 2014 06:10
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ErIog posted:Have you thought about the thing you just said here? Have you watched C-Span? Video adds quite a lot to congressional proceedings since there's so many members of the body, and much of the business of voting is not captured via the audio alone. The Supreme Court on the other hand is a small handful of people talking to each other one at a time in a pretty well-controlled fashion where all the audio is already available. Aside from Congressmen deciding to bring visual aides to their speeches, which is a result of C-Span, C-Span doesn't really capture anything as far as votes and such goes that audio doesn't. Unless by the business of voting you're talking about all actual business being conducted outside the chamber. The only thing it really does is allow everyone to see that people give speeches to an empty room. Which could also be accomplished with some court room sketches, like the Supreme Court. It's entirely possible that I'm talking out my rear end on this point, but I think being able to see the Justices as they question someone does add a level of context not available in strictly audio. Is it a lot or even an important amount? Probably not, but it's something. On the other hand I do think that it would make the Supreme Court more accessible to the public. People are just more likely to either watch a video of it or have video played on the news if it's available than they are to listen to some transcripts. Further the arguments not to have video seems pretty bullshit. If if doesn't add anything it's not really subtracting anything, and I really don't see how being able to see oral arguments places any more importance on them than being able to hear snippets over bad drawings of the proceedings does. A more accessible Supreme Court just simply outweighs 9 fuddy duddies in robes not wanting to do something.
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May 27, 2014 06:19
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This may sound a little naive but is it really so hard to have a system where court opinions are digital documents, post-publication changes are stored in version control systems, and citations are actual links?
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May 27, 2014 06:40
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Gyges posted:Aside from Congressmen deciding to bring visual aides to their speeches, which is a result of C-Span, C-Span doesn't really capture anything as far as votes and such goes that audio doesn't. Okay so you haven't ever watched C-Span then. The video below would be much harder to understand via just the audio, and, in a case like that, more clearly communicates what's happening. The difference between that and SCOTUS is that it's not really feasible to mic hundreds of people in the chamber, and get useful audio from it during a vote. That is much more possible for SCOTUS because there's fewer people involved, and the proceedings are much more orderly. http://www.huffingtonpost.com/2011/04/15/house-democrats-republicans-budget_n_849715.html Gyges posted:A more accessible Supreme Court just simply outweighs 9 fuddy duddies in robes not wanting to do something. This is the kind of thinking I don't understand. They have considered adding video, and they decided against it for a lot of good reasons. You can go read them! It's not like they all just said, "I'm old, and I'm so out of touch I don't understand this new fangled technology!" the way you and Paul MaudDib are kind of making it out to be. They have the audio of their proceedings available as MP3's on their website. The only way they could do that better is if they attached it to an RSS feed to make it a podcast. They have considered how to use technology in order to make court proceedings more accessible, and they decided on the ones they thought were appropriate for what seem like very logical reasons to me. To pretend like they flippantly dismissed it is pretty ridiculous and insulting. The argument for adding video was thoughtfully considered, and they said no. They have allowed audio/transcripts instead. The media already puts way too much importance on oral arguments. You think that's going to be better with video? You think people aren't going to start dog whistling about Clarence Thomas being lazy because he chooses not to participate in oral arguments? edited: to be less of a poo poo head. ErIog fucked around with this message at 07:16 on May 27, 2014 |
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May 27, 2014 06:51
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Looks like Harris v Quinn comes down today, the outrage if they reverse Abood would be fun to watch. Who would have guessed that the SEIU hopes for Scalia to resuce them, just because of the oral argument.
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May 27, 2014 07:02
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