Judicial Activism

[Ryusei the Morning Star]

So, I'm gonna start by saying that I wanna keep this thread civil and clean and will lock it if it turns ugly.

As mang of you know, I'm very pro-govenment, I beleive they are subject to more scrutiny and are thus less liable to inefficiency. Where the caviat sticks for me, is that I beleive the Govenment should be of the people and for the people. Ie. Elected by the people. Which is where my problem with the Supreme Court comes into play

The original role of SCOTUS was to check the constitutionality of the laws passed by the legislative branch, but the increase of Judicial Activism (courts taking it on themselves to set laws roughly speaking) concerns me. Why? Because these Judges are not subject to the will of the people. They are in effect political spawns of whomever is currently in power. Is this changing? Sure, with the onset of Recall elections and the kind, the judges are more liable to responding to people's interpretation of the law.

When looked at it in its most basic form, what is the law, but a series of SOCIAL constructs designed to prevent the onset of Anarchy? Social ie. For the people.

But deviations aside, SCOTUS has become the largest infringement on the people's rights since 9066. Let's look at how this works shall we? A man or woman, not directly elected by the people, i.e. our beloved president, chooses people to occupy the bench. These people are then subject to a senate conformational vote muddled with politics and logrolling, and then are secured for life to rule as they will. The people have no say in the matter what so ever outside of an ideal hope that their senators will speak vote for the people. That being said, how many people have failed their confirmation vote for SCOTUS? Bork is the only one in recent history. Needless to say, despite party lines, the confirmation is usually a yes.

Where does SCOTUS's actions strike hardest? In recent history two cases stand out. The first being Citizen's United, which in effect largely allows politicians to buy the election with help of super-pacs. If anything this ruling has taken power away from the pubic and given it to the minorities with the deepest pockets.

They other would be Obergefell vs Hodges/ 6/26 / Gay Marriage Case. Do I beleive Gay marriage should be allowed? Sure, there not conclusive evidence it promotes any manner of harm to society in general, so I see no issue against it. But that's the issue. That's my opinion, and not the will of the people. The 10 amendment gives the states the right to any power not allocated to the federal Govenment, and marriage is not once mentioned in the consitution. As an LGB (T is a separate movement IMO) I desperately want the legality, but it should be done as history has for social equality. Through congress and through an amendment. Not the whim of 5 unnapointed men and women who have to answer to no one.

Anyway, sleepy, there likely a few holes in this paragraph, so whoever feel free to rip me to shreds for this topic

Edit: knowing certain people on this site, I'm sure the accusations of bigotry are already inbound. It's not a political issue since both the Right with CU and the Left with Obergefell are equally implicit in the trampling of the people's voices. It's more of how the court system as is, is flawed rather than a stab at the asses or the elephants

[vla1ne]

you make sense for the most part. especially the super pacs portion, but not quite for the gay marriage portion, super pacs should not be a matter for the supreme court to decide because as you stated, it's not a matter of whether or not it's constitutional, to rule in favor would be to take a large portion of power away from the people as a whole and give it to conglomerates.
 
 on the other hand, as for gay marriage, the argument could be made that it promotes "life liberty and the pursuit of happiness" while on the other end, the argument exists that it was not necessary to call it marriage so much as it was to simply give them the exact same rights under contract as they would have under marriage.
 
as for the supreme court having too much involvment in judicial activism, that's not quite provable, even within the argument you laid out, the argument could be made that without somebody outside actively pointing out the flaws in their uses of judicial power, the supreme court might not always be able to discern the full extent of their decision until the decision is made. essentially having an "outsiders" point of view to keep them in line. so while the power of the supreme court might extend in ways we don't see, the argument should not really be that they have "too much" power, but that they have "unchecked" power. the other two branches have the same amount of power individually as the supreme court, yet they are forced to balance each other, and the people (should) act as the deciding factor for who rises to power within them, but the supreme court does not quite have the same worries of being checked, replaced, or even moderated, they hold the law in their hands, as well they should, but they currently have no real restraints in their actions other than the election choices of the elected officials (who themselves might benefit from leaving the SCOTUS unchecked similar to how they gained the right to super pacs).
 
but that's just my 2 cents. also:

As mang of you know, I'm very pro-govenment, 

get some rest.

[Wahrheit]

Was Judge Cardozo engaging in "judicial activism" when deciding Macpherson v. Buick Motor Company?

 

http://www.courts.state.ny.us/reporter/archives/macpherson_buick.htm

[vla1ne]

Was Judge Cardozo engaging in "judicial activism" when deciding Macpherson v. Buick Motor Company?

 

http://www.courts.state.ny.us/reporter/archives/macpherson_buick.htm

the way it's written hurts my head, but two parts in particular stood out like a beacon

[spoiler=selected passages]We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract.

 

and also:

 

There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A leases to B a tumbledown house he is not liable, in the absence of fraud, to B's guests who enter it and are injured. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he [*394] omits to do so, his guests must look to him (Bohlen, supra, at p. 276). But if A leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the conse quences involves the creation of a duty (Junkermann v. Tilyou R. Co., 213 N. Y. 404, and cases there cited).

 

 

i can't really say if it was activism, since lawspeak gives me a headache, but this particular passage tells me that he (the judge) at least had fair rules in this case.  

 

(modern) activism is little more than crying about issues that don't really mean more than slight discomfort, but this judge had a very good reason for his ruling and listed multiple precedents for his decision. it could have been activism, but to me it seems highly unlikely that it was.

[Wahrheit]

But Buick was widely hated at the time. Cardozo is taking the existing "inherently dangerous" rule from Statler v. Ray Mfg Co. and completely trashing it in favor of what he calls "foreseeability." This is very similar to what we see today.

 

If the rule is so bad, why not let the legislature change it? Isn't that the role of the legislature? Also, legislatures have researches, elections, and staff, but most judges don't. These questions are the same kinds of ones that Winter is raising. Was Cardozo wrong? If not, why not?

[vla1ne]

But Buick was widely hated at the time. Cardozo is taking the existing "inherently dangerous" rule from Statler v. Ray Mfg Co. and completely trashing it in favor of what he calls "foreseeability." This is very similar to what we see today.

 

If the rule is so bad, why not let the legislature change it? Isn't that the role of the legislature? Also, legislatures have researches, elections, and staff, but most judges don't. These questions are the same kinds of ones that Winter is raising. Was Cardozo wrong? If not, why not?

because he used logic based upon other actual precedents. the car broke down from a defect that should have been found in testing, and as such, it stood to reason that buick was liable for the defect. and if  recall, statler v. ray, was actually used in his reasoning for the judgment. he didn't really trash it so much as he expanded upon it. an automobile is "inherently dangerous" and as such, just like a defective coffee pot that can explode, a faulty automobile can harm not only the people inside, but others around it but virtue of it's defect. as i've said, lawspeak hurts my head, so i may have missed something vital, but the two passages i pointed out are logical foundations based upon other past precedents of similar defective cases, as such, even if his decision was "activism" the reasons for decision were not.

 

it's not that the rule was bad, he actually used it in his ruling, it's just that he classified automobiles under inherently dangerous and ruled that defective ones can be the fault of the manufacturer. in fact, i'd be willing to make the argument that this case contributed to recall policy, where products found to possess dangerous defects (whether or not they are inherently so) get recalled to protect the public and prevent lawsuits.

[Wahrheit]

Suppose, given an "inherently dangerous" standard, that you are an attorney representing a company that manufactures sewing machines. The head of the company comes to you and asks for legal advice about whether he should carry insurance, in case of a lawsuit. What advice do you give? Why?

 

We have a case in Losee v. Clute where a boiler is ruled by the court to not be inherently dangerous. A boiler! Is a car more dangerous than a boiler? Is a sewing machine? Is a sewing machine more dangerous than a car?

 

Cardozo says that this has been the standard all the time, but clearly not. He's changing the law, here, but pretending that it's been the way it has the whole time. And Macpherson isn't even the law - the law is far more protective of consumers now than it never has been.

 

Are all of these judges engaging in judicial activism? If not, what's the difference? They're acting without the legislature, aren't they? Shouldn't the legislature be doing this?

[vla1ne]

Suppose, given an "inherently dangerous" standard, that you are an attorney representing a company that manufactures sewing machines. The head of the company comes to you and asks for legal advice about whether he should carry insurance, in case of a lawsuit. What advice do you give? Why?

 

We have a case in Losee v. Clute where a boiler is ruled by the court to not be inherently dangerous. A boiler! Is a car more dangerous than a boiler? Is a sewing machine? Is a sewing machine more dangerous than a car?

 

Cardozo says that this has been the standard all the time, but clearly not. He's changing the law, here, but pretending that it's been the way it has the whole time. And Macpherson isn't even the law - the law is far more protective of consumers now than it never has been.

 

Are all of these judges engaging in judicial activism? If not, what's the difference? They're acting without the legislature, aren't they? Shouldn't the legislature be doing this?

you tell him to carry insurance. that goes without question, sewing machines have the potential to harm people through regular daily use,  and no matter how unlikely, it is possible, the question is the extent of said insurance. too much and you waste money, to little and you can get blindsided when you miss a defect.

 

There must be knowledge of a danger, not merely possible, but probable.

a boiler, is inherently dangerous, but  in the case of that particular boiler, it had been tested by both the manufacturer, and the user and passed all the required tests if i recall, it was ruled that the malfunction was not due to the negligence of the manufacturer since it worked properly for a significant amount of time and not only passed all the required tests, but it even passed those of the purchasers. it's not about what's more dangerous, it's about how likely is it to cause harm if it has a defect. for example, if sweater manufactured by a company has a sewing defect it might fall apart, but is that dangerous? no, not really, but something like food, if negligently made can easily cause harm to people, as such, while not inherently dangerous, it has the very real potential to harm others if not tested thoroughly. same goes for a sewing machine, a boiler an a car, they all are perfectly "safe" if used correctly, but if the manufacturer neglects testing, the danger of a defect becomes not only possible, but probable. the sewing analogy does not include this, the boiler case was the possibility after testing, but the car case was the probable one because not only was testing neglected, but if i recall correctly, they specifically ordered less than stellar parts to save money, and missed a few tests.

 

he's not changing the law, he's simply applying a standard from prior cases to an area where it's reasonably applicable (manufacturers neglect). is that so wrong now? judicial activism would not come with sound reasoning, this case used logic drawn from prior cases, and the duty of a manufacturer in order to come to a conclusion that is supported by the facts of prior cases.

 

i really don't see where you're going with this.

[Wahrheit]

But that wasn't the rule. The rule was privity of contract, established in Winterbottom v. Wright. No privity, no liability.
 

No privity, no liability: Winterbottom v. Wright (coach), Loop v. Lichfield (flywheel), Losee v. Clute (boiler).

 

No privity, but liability: Thomas v. Winchester (poison), Statler v. Ray Mfg. Co. (coffee urn), Torgensen v. Schultz (aerated bottles).

 

Each of the judges in each of these cases is establishing new precedent, distinguishing these cases from those that have come before, and changing the rule. What gives the the right?

 

Cardozo comes along and throws privity of contract out the window entirely. What gives him the right?

[vla1ne]

But that wasn't the rule. The rule was privity of contract, established in Winterbottom v. Wright. No privity, no liability.

 

No privity, no liability: Winterbottom v. Wright (coach), Loop v. Lichfield (flywheel), Losee v. Clute (boiler).

 

No privity, but liability: Thomas v. Winchester (poison), Statler v. Ray Mfg. Co. (coffee urn), Torgensen v. Schultz (aerated bottles).

 

Each of the judges in each of these cases is establishing new precedent, distinguishing these cases from those that have come before, and changing the rule. What gives the the right?

 

Cardozo comes along and throws privity of contract out the window entirely. What gives him the right?

common law gives him the right. he wasn't making as large a change as you seem to be interpreting it as, he used already established cases to justify his own decision, and in the case of winterbottom vs wright, wasn't that was the first case made on the limits of liability for negligence? look at the entire picture and you'll see that every case up to and including the buick case was foreshadowing (if that's the proper word) the same precedent as macpherson. he simply finalized the transition. 

 

in the eyes of the law, selling a product that did not pass the proper tests, or even receive the proper test is negligence, and all of the past cases acknowledged this, the only difference in the case you appear to be up in arms about is that it establishes fault. and that is well within the rights of common law so long as there is a clear and well defined reason for doing so using specific examples. therefore, whether or not you call it activism, it was well justified, and the case itself finalized the standard of negligence.

 

the vehicle was not placed under the proper tests by the manufacturer, and due to that, somebody was injured, this is a clear cut case of negligence. what cardozo did was use past cases to establish a solid reason for the new precedent he set. again i quote: 

 

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.

 

the manufacturer knowingly sold a potentially faulty vehicle that did not pass (or did not undergo) the proper testing. this created not only a possible, but a probable danger in the product, and endangered the lives of everybody involved, whether or not they were in the contract. had the car broken down from natural use over time, then you might have a point, but in this case, there was a clear indication of negligence, ad as such, cardozo used multiple specific past precedents to justify his case. all of them were relevant, and he didn't even do anything radical, he simply took one more step in the already changing precedent.

 

again, i don't really get where you're going with this, it'd be one thing if he'd done it out of spite, but in this case, he actually gave good reasons for his decisions. you can call it activism if you'd like, that's fine, but every case you are citing against his was literally used to justify his explanation of further evolving the set precedent. (because all of those cases themselves did the exact same thing his did)

[Wahrheit]

Let's just be clear - the move from "privity of contract, with exceptions" to "foreseeability" represents a major rule change and nothing less. ACS and FedSoc agree on this.

 

The people who agree with Winter argue that if the rule really needed to be changed, it should have been the legislature, not Cardozo.

 

See e.g. https://en.wikipedia.org/wiki/MacPherson_v._Buick_Motor_Co. and http://bit.ly/1WvYBxe

[vla1ne]

it's a large change, but as stated before, it was preceded by rulings that did the same thing without the change, now the argument can be made that if it could be done before the change then the change was not needed, but remember that cardozo came into law as law itself was undergoing a large shift. judging him based upon current standards does not take into account the events occurring back then (industrial revolution), and the rise of completely new cases that had no exact precedent in the past. 

 

maybe so, but winter was talking about the modern SCOTUS, not the past, and in this case, i don't think cardozo was even on the supreme court at the time of this decision.

 

i stand by what i said earlier, buick manufactured it, the dealer did not. in fact, i doubt that the dealer had the auto experience to perform a satisfactory check even if he wanted to. but even if they had, it was the responsibility of the manufacturer to ensure that the vehicle was up to standard before ever even selling it to the dealer. to put it another way, let's say the people at family dollar had to test everything before selling it, would that not be a foolish endeavor? it's a similar principle here, the dealer did not have the knowledge to do a proper inspection but that was not his job in the first place (within reason) the responsibility fell upon the manufacturer in the first place to inspect it, so when it's discovered that the vehicle was built negligently how is that a word? then it is not the fault of the dealer, but the builder. its a precedent set by prior cases, cemented by cardozo.

[Wahrheit]

Come on, now, you know as well as I do that you can't just say "the precedent supports my claim" without citing the specific precedent, explaining how, etc. Do your due diligence.

 

By the way, I'm playing the Devil's Advocate here - you're on the right track - it just matters that we follow the logic properly.

[vla1ne]

as i said before, lawspeak hurts my head, i prefer blunt words. going through the roundabout wording of the case is really annoying,

 

[spoiler=but since i guess it needs saying:] 

1)The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester (6 N. Y. 397). A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. "The defendant's negligence," it was said, "put human life in imminent danger." A poison falsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury.

 

 

in this case, the ground is laid for negligence by way of false labels, this case isn't a direct link to his own situation, but it establishes negligence of product in the manufacturing process and how that negligence can affect those outside of the event of first purchase. in this case, the label was incorrect, and the druggist was not made aware of this, as such, while the druggist is not really to blame (unless you expect him to test the drug himself) the manufacturer made a massive mistake which caused harm to a third pary outside of contract and is therefore liable for the damages. 

 

2)Loop v. Litchfield (42 N. Y. 351) is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that the manufacturer was not answerable to the lessee.

 

 

in this case, the maufacturer was aware of the flaw, and pointed out the flaw to the dealer, who still decided to lease the vehicle, in this case it was not negligence on the part of the manufacturer, beacuse the contract involved full knowledge of the defect before the buyer went through with the deal. so responsibility then falls upon the dealer, who knew fully of the problem before it ever arose.

 

 

3)Devlin v. Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. R. [11 Q. B. D.] 503). We find in the opinion of BRETT, M. R., afterwards Lord ESHER (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: "Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing." He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied.

 

 

in this case, the precedent was set for reparations outside of contract. an outsider to the og contract was harmed due to negligence of the manufacturer, and as such, the manufacturer was held liable. i believe this is the meat of where he created his final ruling from.

 

 

4)Losee v. Clute (51 N. Y. 494), the case of the explosion of a steam boiler. That decision has been criticised (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th ed.], § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, but had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [3d ed.], pp. 50, 51, 54; Wharton, Negligence [2d ed.], § 134).

 

 

i finish with this case, because it represents the final form of the precedents set prior, testing, in this case, not only did the object in question undergo testing, but it apparently passed all of the tests and was even tested by the buyer and found to be satisfactory. which i beleive was used to justify his statement that there must not only be knowledge of dangers possible, but probable, the risk was assesed, and while it was there, all parties at the time of the contract decided that the risk was not enough to cause worry (inferred from all the tests given, and the lack of returns). 

 

there's more, but really, this is all i believe i need to establish specific precedents.

 

like i said in the last paragraph though, cardozo comes from a different time, the laws were not settled in quite as much as they are now, in fact, he was a driving force in cementing the laws we have today (including common law, so i apologize for citing that as a reason for him being correct in my prior statement)

[Wahrheit]

Bring it home. What does all of this tell us about precedent? When ought it be followed? When not?

[vla1ne]

aren't you just asking about common law? literally, the guy you're asking about is essentially the father of common law. and if you are, then the common law clause already answers your question. 

[Wahrheit]

aren't you just asking about common law? literally, the guy you're asking about is essentially the father of common law. and if you are, then the common law clause already answers your question. 

No, no, you're missing the point again. Come on, you've got it in you. Make the argument.

 

One of the driving principles of law is "stare decisis" - you, as a judge, must rule in a way that is consistent with past decisions. Precedent gives us stability, continuity, efficiency, predictability, fairness, and objectivity, doesn't it? So why should we ever rule differently than our predecessors? When does a rule need to be expanded, or in the case of Cardozo and others, entirely replaced? There are plenty of lines of cases like Macpherson - it's just the one that I think is most easily understandable by most people.

 

When should we not adhere to precedent? When doesn't it help us? Why did each of those cases expand the exceptions? Think about this and answer carefully.

[vla1ne]

No, no, you're missing the point again. Come on, you've got it in you. Make the argument.

 

One of the driving principles of law is "stare decisis" - you, as a judge, must rule in a way that is consistent with past decisions. Precedent gives us stability, continuity, efficiency, predictability, fairness, and objectivity, doesn't it? So why should we ever rule differently than our predecessors? When does a rule need to be expanded, or in the case of Cardozo and others, entirely replaced? There are plenty of lines of cases like Macpherson - it's just the one that I think is most easily understandable by most people.

 

When should we not adhere to precedent? When doesn't it help us? Why did each of those cases expand the exceptions? Think about this and answer carefully.

2 things, 

1) You are not speaking to a child. attempting to lead people with questions is somewhat annoying (Aristotle might have done it, but he was an jabroni).

 

2) the explanation is still practically covered by common law. changing times. the entire reason for common law's establishment (at that time) was because there were so many things within society changing that they had no real precedent for any of it. common law was established so that laws could be changed to suit the needs of society without the need to adhere rigidly to, or drastically shift, the law. it was always there somewhat, but it was put into writing to give it substance. when the rule no longer fits the society, common law allows you to, within reason, rule in a way that goes against precedent, so long as you have a good reason for the ruling.

 

for example, saying "it's 2016" is not a good reason to rule in favor of gay marriage outside of precedent, but saying "despite the past precedents, gay people are humans, and like any other human, they deserve the same basic rights as established under the constitution including the right to marriage, and while we could grant them those same rights without calling it marriage, that could potentially become a repeat of the 'separate but equal' act and could lead to discrimination on unforseen grounds in many areas of society." is.

 

a problem with this though, is that precedent cannot be thrown out by lower courts. only swayed or dissented. so really only the supreme court can freely throw it out the window, or establish a new one. and that's what i think winter's getting at, supreme court, in its area of the judicial system has for all practical purposes, unchecked power. yes, there's uneven number, and they dispute often, but when they make decisions, their word is (literally) the law. and there is really no second party to dispute them.

 

 

now if you think i've got something wrong, stop acting like you know everything, and actually prove you know something.