The Inexplicable Thing About Common Law

19 11 2010

There’s one thing I don’t understand about the debate about the law, specifically the conservative talking points about judges “making law” or legislating from the bench. Specifically, why anybody pretends this makes any sense whatsoever.

America, like a dozen or so other countries with historical ties to England, has a common law system. When America became a country, they didn’t sit down and write all new laws. Which makes sense; while there was plenty they wanted to overturn, the major focus was changing how government worked, not necessarily all the specific laws they lived under (indeed, that’d be a quick way to descend into chaos). Instead, they adopted the English “common law.” The common law was a body of legal opinions from various courts interpreting and applying statutes.

By adopting the common law, those early Americans were essentially relying on the English method of allowing judges to determine how laws should be interpreted and applied by providing the rationale and reasoning for each decision. In order to know what the law is in any given jurisdiction, it isn’t enough to read the laws as passed by legislatures, but to read “case law” that explicates those laws.

This is good for legislatures, because it saves them an enormous amount of time and, more importantly, makes sure that the law can cope with unforeseen situations. The law is immensely flexible because the ginormous body of case law allows them to build on a huge body of reasoning to construe how, when, and why the law should be applied–or shouldn’t.

This is different from the way law works elsewhere. Most of the nations of the world are republics in the French Revolution model, with a single, central government authority and comprehensive civil codes (influenced by the Code Napoleon). In these nations, judges are permitted only to apply, never interpret (or invalidate) the law.
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The Inanity of the Objective Press

5 11 2010
Chip Inn.jpg

Former Progress Illinois editor in chief Josh Kalven and I, over drinks at the Chipp Inn in Noble Square, lamented the state of political journalism. Reiterating something he’d said at a panel discussion at the Hideout, he told me that he wasn’t certain why there was so much discussion about the legitimacy of bloggers as journalists in the context of their “biases.” Everybody has predispositions and opinions, he said, at least readers know from what point of view so-called “partisan” media comes from. Traditional journalists aren’t free of those predispositions, they are just instructed to hide them.

This was on everybody’s mind in particular after an experiment by Slate wherein they disclosed for whom all their writers voted. This was supposedly a painful thing for a news outlet to do, because it would “discredit” what their writers were saying.

Just this week, MSNBC suspended host Keith Olbermann when Politico reported that he had donated money to candidates he had interviewed on his show Countdown. Presumably, this represented some nebulous conflict-of-interest, wherein Olbermann was concealing the fact that he actively supports Democrats for public office from his audience. This reminds me of when Muhammad Saeed al-Sahhaf was suspended for failing to disclose he’d donated lemon bars to the Republican Guard Alumni Booster Club.
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The Department of Taking It Easy

5 11 2010

I made this video with a very express purpose.

Allow me this: a modest proposal. The creation of an independent executive-level department, operating as a sort of ombudsman with responsibilities distinct from the type of policy implementation functions that are the raison d’etre of executive-level departments. Similar to a newspaper’s ombudsman or the Office of the Independent Counsel, this department would serve a watchdog function. To wit, a Department of Taking It Easy.

How we would all be better served if we pursued, through mild paternalism, a lifestyle animated by an unswerving impulse to take it easy, encouraged by gently imbued policies. Be still my heart.

The Department of Taking It Easy would be headed not by a Secretary, but a Relaxer-General, to emphasize the independence of the department, with analogy to the old Postmaster-General position. Like the ATF inside the Department of Justice, the policies of the DOTIE would be enforced by a Bureau of Cool Beans, headed by the Bursar of Cool Beans.

Before I continue, let me explain that. When I was 11, my sister brought home her eighth grade yearbook, which featured a “student survey” listing students’ self reported “favorite band” “favorite teacher” and among other categories, “favorite saying.” Number three on that list was “cool beans.” I’d never heard anybody actually use this phrase, I assumed that it was something you said to calm down a situation, like, “Hey, I think we’re all getting a little too heated in here. Everybody just cool beans, okay? C’mon man, put down that fireplace poker, take a deep breath, cool beans, cool beans.” I carried on this belief until I was seventeen years old when I heard it properly used to mean, inexplicably, “cool.” I decided I liked my version better and have used it that way ever since. And since this is my department, I get to give things whatever name I want.
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3 11 2010

Hey everybody! Thanks for stopping by in between booking one-way tickets to Ottawa on Priceline in anticipation of the proto-fascist Republican takeover of the federal government or researching your upcoming blog post, “The Democratic Party is Toast (For Real This Time).”

I joined Lenny McAllister of WVON and Nenna Torres of UIC to talk about last night’s election results with Alison Cuddy of WBEZ’s 848. Highlights include me calling Pat Quinn “a tough dude.” For the record, I was this/close to calling him “one tough motherflipper.” You’re welcome, BEZ. Check it out.

The Meaning Of Life, Part III

1 11 2010