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/lit/ - Literature

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19591941 No.19591941 [Reply] [Original]

Seeking readings.

Law student wanting to get back to the fun stuff after exams.

Post whatever, talk whatever.

Originalism and textualism are fine by me, but don't be myopic: survey the whole landscape, stupid. Partisan navel-gazers of all stripes stunt their own flourishing.

If non-American, please at least keep it multinational, e.g. influences of canon law in the modern EU, securities regulations between the US and China, or the role of international arbitration in gap-filling where individual countries are unable to exercise comprehensive jurisdiction over all facets of a complex commercial dispute.

Will post some books I'm considering.

>> No.19591971
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Friedman's History of American Law, 4th Ed.

Pristine copy borrowed from friend to whom it was gifted and then who left it untouched.

Flipping thru, some fun stuff, like the manner in which American corporations were originally tailormade by individual statutes. Very reminiscent of Chinese SOEs. But of course there were other legal vehicles for more private ventures, like partnerships.

I'll save my other books as bumps.

>> No.19591975

heh, i was about to create a similar thread to this one. bump my fren

>> No.19591982

Any good suggestions for someone with a rudimentary interest in law? I'm not/never going to law school so I'm not sure what is over my head to read for pleasure

>> No.19591990

plea dealing was recently introduced in my country by means of Germany
our prof spend a good hour seething about it, it was pretty fun desu
in penal law, does the US have a doctrine of the "independent mission of the court to find the truth" like they do here? I imagine you call it something else though
in the sense that a judge can't just take a confession and call it a day, the court still has to go through all the evidence presented and blablablablablabla
this is the only argument he brought up against plea dealing that sounds a little convincing
that it violates this "right" or so to speak
how does the US deal with this, if it does
>Canon law, modern EU
lmao, EU law is made by Brussels for Brussels
the horizontal-vertical shit is pretty interesting but otherwise, EU law is a fucking snooze of overregulating every aspect of people's lives from the world's flattest ivory tower
so yeah, it's kind of like canon law
oh also, I have to talk about O'Connor vs Uber for my labour law class in a paper
Am I right in observing that for all the rhetoric of a need for new criteria and that really random Foucault citation, it's basically just using the borello criteria?

>> No.19592155

Posner's Law & Literature was nice for early toe-dipping. It's primarily about the cultural idea of lawyers rather than lawyering per se, but he explains some barebones concepts that make adjusting to law easier.

I'm not familiar with criminal law, and lots of procedure varies by jurisdiction, but in the broad strokes:

To my understanding plea deals are more like settlements than court decisions. Something like 98% of civil litigation is resolved by settlement rather than trial, although I don't know how that figure accounts for early dismissals etc. Judges prefer this, because it reduces administrative load on the courts, and parties usually know all they need to after discovery is complete, but it's the decision of the parties, not the court.

With regards to European judges guiding the whole procedure, the US has some of that but not to the same extent. For one, judges have immense power over the discovery process, and closely guide cases from cradle to grave. However, it is still up to the parties to do the discovery, organize the evidence, and make the arguments, all typical to the adversarial process. Also, cases aren't necessarily decided by juries, because for one the factfinder role can be transferred to the judge for a "bench trial" if it's the right kind of case or if all parties consent, and two, because judges have many tools to overrule jury decisions for being "unreasonable" etc. That's partly for self-preservation though: they may order a new jury trial specifically because they expect that an appellate court would remand for new trial, so why waste time on the rigmarole of appeal?

Again though, I'm probably incorrectly bringing lots of civil law presumptions into criminal law, which I hardly know.

I'm not familiar with O'Connor v. Uber, but wasn't that defeated by Prop 22?

Incidentally, on the Foucault note, if you want to see some great Californian judicial obscurity, check out Pacific Gas v. Thomas Drayage, penned by Traynor. Gorgeous opinion.

>> No.19592185

> independent mission of the court to find the truth" like they do here? I imagine you call it something else though
No, it’s up to the adversarial system, namely government v. defendant, to converge on the truth if it ever reaches that point. I’m a public defender and I’m not sure how often the truth is even reached. Especially when the evidence introduced requires the jury to make such a massive inference that my client did it, but because the retarded ADA — pursuant to the judge denying my motion in limine—gets to introduce Rule 404(b), for which they spend an ungodly amount of time tearing apart witnesses for their prior bad acts and character. Also, the jury trial in a criminal proceeding is fucked because jurors want to hear the defendant, think that if the defendant does not testify then he is guilty. The average juror is so ducking retarded that I spend most of my voir dire (when I know my client is not taking the stand) trying to explain to those retards that the defendant (1) does not need to testify and (2) the defendant does not need to put on any evidence because the prosecutor solely has the burden of proof. They nod their heads like they understand, I know these mouth breathers are lying, judge gives me 15 minutes for jury selection, time is running out, I move on. Fast forward to the end of trial: I talk to the jury who convicted my client even though no reasonable person with more than 5 braincells would have found him guilty; they told: I really wish we heard from your client and him not testifying didn’t sit right with us. I can’t do anything at that point, so I sigh and go to the bar and drink. Don’t get me wrong: more often than not, my retarded clients are guilty (but frankly I don’t give a shit).

>> No.19592201

Ignore the solecisms. I was abruptly woken up because a former client rammed into a family while drunk and thought I could represent him since I represented him before, and he’s probably going to get a PD again. I told him it doesn’t work like that, I need to be assigned, but did it take no for an answer, so I turned off my phone.

>> No.19592202

I defer to the nonstudent.

>> No.19592301

Based fellow civil Chad even if in a different legal system
Do you not need to do criminal law in burger law school?
Here you need to do a bit of everything so you end up knowing next to nothing by the time you're out
And then around here you have codes rather than jurisprudence
This means that every new pea brain that becomes minister of justice feels the need to change up the codes to be remembered as a great reformer
Ergo the legal system is a perpetual clusterfuck
Perhaps I idealise the common law system because I don't work with it but my points in the random rant stand
>Prop 22
What is if you don't mind?
Will definitely check the case you suggested though
Thanks a lot and don't worry bro
Juries being retarded is an ecumenical experience

>> No.19592404

Ever since I started running my sick friends firm, these threads just don’t interest me like they used to. :(

Civil lit is exhausting.

There was a whole originalism thread earlier and I was to tired to even go in and call them faggots.

>> No.19592407

>There was a whole originalism thread earlier and I was to tired to even go in and call them faggots.
Why do you hate originalism? You can tl;dr it if you don't feel like writing up an essay.

>> No.19592421

L.H. LaRue, Constitutional Law as Fiction. Deconstructs the rhetoric on which certain very important rulings rest. Concise, really well-done.

Posner, Law and Literature. A fun read, as is his book, 'Cardozo: A Study in Reputation'.

Grant Gilmore, The Ages of American Law. Classic. Written in an era when law profs were more stylish, epigrammatic and blessedly concise.

Any article written by Paul D. Carrington, particularly his biographical pieces. Always a pleasure to read.

Randy Barnett's articles on Lysander Spooner and other 19th century personalities and jurists.

>> No.19592469

Originalism is always used as a justification for an ideologically motivated end result, yet it portrays itself as the reasonable, logical, and natural application of the law.

It goes in the same bucket as legal formalists larpers ignoring the past 150 years of scholarship and scirentifi. Research or law&economic niggers thinking judicial efficiency and monetary damages are truly justice.

>> No.19592500

Then what's the solution? You've knocked down
>appeal to some morally pure transcendent authority
>lmfao "law" is just a means of controlling the plebs muh technocracy

Do you want a more morally pure transcendent authority? Or are you suggesting that a legal system needs to actually have a coherent understanding of "justice" derived from philosophy rather than either of the above? I don't really understand what you mean by
>It goes in the same bucket as legal formalists larpers ignoring the past 150 years of scholarship and scirentifi.
so I'm not sure what you would consider an alternative. In my field "law" is pretty much fixed constants of the universe that bureaucratic systems play by the rules of.

>> No.19592521

I’m not really suggesting a fix of anything. I’m going to work until I die and my job is to get the best results for my clients within the bureaucratic nightmare that is our profession.

The more I read the less I really maintain an opinion on what would be a good ‘solution’ let alone what ‘good’ actually is. The only thing law school did is make my “childish repetitive asking of ‘why’ until the parent gets angry” more articulate. Every solution is based on fundamental presuppositions that themselves need to be justified and examined and it’s not like a judge is going to respect a bluebook citation of all the bullshit /lit/ philosophy I’ve read over the years.

>> No.19592522

lawyers are scum and the system in which they operate is a giant grift scam

>> No.19592527

Not as bad as doctors though

>> No.19592621

Gilmore's Death of Contract is also great.

So you're simultaneously opposed to emphasis on the text (originalism), and also emphasis on policy (law & economics)?

What tethers your jurisprudence aside from your private sense of morality? What distinguishes you from 18th century equity courts where judges arbitrarily granted relief based on who they regarded as most wholesomely Christian etc.?

Throwing out both text and policy strikes me as throwing out the last 150 years of scholarship and scientific research...vague appeals to justice are ultimately indistinguishable from vague appeals to divine natural law.


Personally, I think that bureaucrats are heroic. The thankless task of maintaining civilization.

>> No.19592636

Roe vs Wade will be overturned. That is all.

>> No.19592646

>Retard commits crime
>Retard lies to lawyer
>Retard says things in court he didn't tell his lawyer beforehand
>Retard gets indicted
>The lawyer is obviously just a grifter
He is a self righteous retard who loves the sound of his own voice that appears in every legal thread
And then turns into an angsty teenager when asked what he actually believes in

>> No.19592648

Likely true, but won't impact most women who care, since most women who care live in blue states where abortion is protected by statute.

>> No.19592779

I think you are conflating two individual ideas into a spectrum of belief. Law and Economics does not encompass the entirety of legal policy and ground work put into decisions. The rule against perpetuities wouldn't exist if policy was purely devote to economic terms like most law & economics theories tend to see the world as.

I also disagree with painting originalism as an 'emphasis on the text'. It is an interpretation of the text based on a contextual histographic perspective couched in the enlightenment era mode of thought without any sort of critical thought put to the systems and underlying effects of those freedoms.

The only thing that separates me from 18th century equity courts is roughly 300 years and everything that has happened between then and now. I'm not a judge, a justice, a senator, or a saint. I am just a lawyer. I am my clients will manifest through the vicar of my state license. I am a privatized bureaucrat whos sole job is to be an indoctrinated mercenary at the hands of whoever will pay me enough money to stop my car from being repo'd. I have no room in my job to flaunt ontological arguments of what justice truly is. Everyone just wants to go home to their families and forget that they bankrupted a family business or threw another poor person in jail.

Fundamentally your questions are framed in such a way as to mandate that consistency must be the most important thing within the law, which I don't think has ever been the case, and that the law itself must exist, that there must be some sort of structure in place to resolve disputes and implement societies morality at the end of the gun wielded by the state's monopoly of violence. In the end a sheriff is going to cuff you or shoot you, we just need to figure out the nicest way to do that. How else is a judgement enforced beyond the barrel of a gun.

I have no actual answers to these questions, just like >>19592646 says, I come in here and just complain.

>> No.19592794

Also considering Tocqueville. Read and annotated some of the start, ages back, and I recall some interesting thoughts regarding the effects of removing primogeniture from inheritance law.

Definitely wouldn't annotate now, being break reading. Likely wrong about a lot, both in the sense of outdatedness and also archaic (low) historiographical standards, but still a classic, at least among politicians of all sorts.

>> No.19592799
File: 39 KB, 1510x362, blackmun furman georgia death penalty capital punishment.png [View same] [iqdb] [saucenao] [google] [report]

Name a single Supreme Court opinion more based than pic related.
Protip: You can't.

>> No.19592806

>We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.

>> No.19592826

Also while I'm glad scalia is dead, he was pretty funny sometimes
>It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U.S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

>> No.19592861
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Forgot pic.

So you don't think that reliance interests matter?

Economic thinking isn't solely conservative. It is usually cheaper to prevent people being hurt than to clean up the mess afterwards. Law & economics shares a lot with the preventive medicine movement. I care much more about preventing people from causing suffering than about punishing them ex-post.

Also, don't see how economic thinking is incompatible with the rule against perpetuities: why would we want to force people to adhere to dead interests, or entrench wealth inequality, which impairs efficient flow of resources and reduces society's overall standard of living?

Your complaints seem to be mainly about the political imaginings of certain legal tools, or about political actors' misuse of these tools, rather than about the actual tools themselves.

Again, I don't see what distinguishes you from the old equity courts aside from a broad assertion that you're modern—and that, apparently, people you disagree with aren't.

>> No.19592876
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>> No.19592884

Law student as well. Just finished my very first semester

I think I really fucked up. I had my civ pro exam on Thursday and I could just not fucking fall asleep. I was in bed by 10:30, took melatonin and everything, but could not manage to fall asleep until 3:30AM. I was back up at 6 feeling like a zombie and with a bad headache for an exam at 8:30. My body fought me on every second of sleep and I have no idea what it was

I decided to tough it out but I ended up word vomiting barely cogent answers. Thinking back, some of them are almost non-sensical, and I’m embarrassed to have turned it in to a professor who obviously thought very highly of me during the semester

Fucking sucks man.

>> No.19592930

Does your school have grade-nudging based on level of participation? If so, then at least you'll be nudged up a little if they really did like you.

>> No.19592933

Right, but to frame the solutions to problems in frames like "cheaper" as an overall standard of good just seems like it loses any and all consideration of the context of what it is to be human. Monetary calculation makes sterile the actual issues play and the social dynamics between parties in a given group or society. I'm sure L&E shares many underlying ideas with preventative medicine, but preventing death and preventing breach of contract aren't really equivalents in my eye.

Again, I think the difference is I'm not a judge and I have an obligation to my client, not to a vague sense of law.

Tools are used to do things by the actors that use them, but if we are turning bureaucracy into a metaphor about tools then lets just take Motions for summary judgement, an idea that is supposed to be efficient and take care of cases before the expense of trial and completion of discovery is going to occur. The problem is that the tool itself is now simply used in almost every case as another tactic in the long run up to day before trial settlement. MSJ gets denied. MSJ gets appealed. MSJ gets denied again. Court Costs. Billable Hours. Filing Fees. Mental thought into bullshit arguments. Clerks resetting the hearing date. Scheduling conflicts. Zoom IDs. Twenty different CC'd emails for late discovery. All of which is thousands and thousands of dollars for a client who is not any further along in their case, all for something that initially was supposed to be used for efficiency. Isn't that swell? The entire implementation is a nightmare. Don't even get me started on that 12b6 iqbal twombly bullshit or pleas of jurisdiction. Such a fucking waste of my god damn time.

>> No.19592950

You are on a curve. If you passed, it's fine.

I had a friend who didn't sleep before his torts exam and ended up filling out the scantron off by one answer, giving him the lowest grade in the class and having to retake the entire thing. It was brutal.

But yours was an essay, you hit the major points. You used the key words. The professor will probably pass you. It's okay bud. Go drink a modelo and watch some kung fu movies. It's gonna be okay.

>> No.19592989

Cheaper means you have more money to produce good outcomes. Expensive means you can do less good and more people are hurt.

You comment on the complexity of litigation itself is extremely valid. Some would argue that we want to incent parties to settle, but I have no position either way on that.

Don't you think that the certainty created by law ultimately means that litigation is less complex than it would otherwise be, though? If judges were unconstrained, would there be appeals on everything even moreso than already, and wouldn't people constantly be scared of some unexpected lawsuit and unexpected ruling on everything they do?

Most people almost never think about law—doesn't that mean law is doing its job? Laozi commented that the emperor should be out of sight, and facilitate the effortless actions of his subjects.

>> No.19592994


>> No.19593063
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>Most people almost never think about law—doesn't that mean law is doing its job?
I think every individual should have an active participation in the way their society acts, determines, and punishes people. To do so otherwise is exhorting power, violence, and authority upon someone while actively removing their autonomy and whatever freedoms they have left. Your quote is about an emperor, an individual sovereign. And while the quote is accurate in post ww2 USA because of the rapid spread of the administrative state through presidential powers, I'm not sure that's something I want. I mean, if the end goal is that everyone gets to stay home and watch TV and eat surplus calories and consume until they die, I presume active participation within a legal or political framework would be too much to ask for. We all went to law school, we all took the bar, we all know how much a joke this all really is. Sure pro se's are retarded and sovereign citizens are crazy, but shouldn't we be helping them understand the world they live in? IGNORANCE OF THE LAW IS NO EXCUSE iirc.
>Don't you think that the certainty created by law ultimately means that litigation is less complex than it would otherwise be, though? If judges were unconstrained, would there be appeals on everything even moreso than already, and wouldn't people constantly be scared of some unexpected lawsuit and unexpected ruling on everything they do?
This is already the world we live in though. There was a county court judge in my county recently that constantly refuses to put on exculpatory evidence and has been over ruled multiple times by the appellate court RIGHT DOWN THE HALLWAY, but he still does it, even after they keep lecturing him on it. I also don't think that reducing complexity of litigation should be the priority as your question kind of stipulates. Complexity of litigation and bureaucracy are means to ends for clients, but there are many attorneys that practice as if the process of litigation itself is the ends for them and the client is inconsequential to being in court all the time and billing hours.

I think at this point there is a pincer problem with the practice of law regarding the standardization you crave. We have so many codified statutes at state and federal levels right now it's worse than rome or napolian ever was, but at the same time we still integrated the monster that is the common law that is to be equally respected. We have both sides of the spectrum of the broadly applicable to the particularly niche contextual decision, and we are supposed to some how make the two things work together. Many use it as a definitional filter, but it just causes more confusion. And its this kind of cognitive dissonance duality that makes originalism such a joke. Use this language when it suits you but use this one when it doesn't. And i get it, I do that all the time. But I'm the lawyer, not the judge.

>> No.19593089

you could have just said fuck trump

>> No.19593100
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>> No.19593117

I appreciate you for being a 60s-style liberal, in terms of being anti-conservative and yet also anti- big gov't.

I definitely won't defend county judges in the slightest, but that particular problem strikes me as inevitable, in the sense that the very bottom of an administrative structure is often, well, inept or even malicious. Otherwise, they'd be higher up. Seems somewhat better than the bad old days, when taxmen were essentially a mercenary shadow gov't hired by the official gov't. Or even worse, Rome's system of literally letting people bid for the privilege of gouging some province.

On the statutes comment, don't statutes ordinarily override common law? As a student, I'm taught all this common law but have a feeling that it only fills in the gaps in statutes, whether gaps by accident or by lobbyist design (medmal).

>> No.19593140

Daily news postings are enough to keep you occupied and open your third eye.

>> No.19593173

It's the classic "no vehicles in the park" problem.
What is a vehicle? Car? Skateboard? Tank? boat? What is a park? The statute says "no vehicles in the park" because it was written by some undergrad intern trying to appeal to his boss (some form of representative) by listening to a lobbyist who hasn't practice law in four decades. Great, but they forgot to incorporate the first chapter of the statute to define vehicles or parks and the side referenced federal statutes were repealed in 1974 when big hotdog cart lobbyists got ride of the '1943 definition of vehicle and park bill'. So now courts have to interpret what courts before had interpreted in that dead statute while still respecting the governmental bodies redaction of the statute within the powers of that state and it's own particular historical definitions from case law defining what a vehicle or a park is to that state, that state before the war, and that state when it was it's own country. All of which is to say that there are about 10 different sources and arguments I can make that are each distinctly different about what a vehicle and what a park is, all of which are more or less valid and reasonable arguments to make in front of a judge. And then it's up to whatever the current judge's predisposition is. Did he have lunch? Does he hate parks? Did his wife make him sleep on the couch last night? Was the judge a family law attorney before and knows nothing of the penal code? Is he hung over? Does his court coordinator actually run everything? Who knows. He's gonna rule. If he rules against me, does my client have enough money to appeal? If he rules for me, do they have enough money to appeal? If those answers are YES, then we do all of this all over again at the appellate level, except those judges have to write their opinion down, so they have to come up with something that doesn't embarrass them in front of their piers, voting block, or get overturned. Trial judges have the same concerns, but not nearly as much of a fake veil of propriety is put on them.

>> No.19593239

I'm a socialist but all my opinions on the judiciary align with conservatives ngl

>> No.19593254

Sorry, but you're going to have to die. I don't make the rules, I just follow the neoliberal order.

>> No.19593264

Is that because your socialism derives from the same set of natural law principles as conservatives believe the law comes from?

>> No.19593271


>> No.19593322

It's 2021, judicial theory is history. Now judges just rule based on their feefees so you might as well read "White Fragility"

>> No.19593336

That’s the joke anon, judges have always ruled on their feefees.

>> No.19593648
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Considering this too, but it's not very legal in the sense of getting into his opinions. Neat that he caught skepticism from William James, though, especially with James knowing Holmes too.

Supposedly when Hand retired, he lived near Salinger, who was self-isolating thus quasi-retired, and they met up a lot.

>> No.19593800

I forgot to answer you.

Prop 22 is a bill that Californians voted in due to a massive advertising campaign run by ridesharing app companies.

Basically makes it easier to designate everybody as contractors.

>> No.19593832

Iirc it’s a third class, not even as much protection as a contractor.

>> No.19593839

this guy is a huge coper. he go so btfo during the election
>t-two more weeks
>n-no way biden can win

>> No.19595307


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