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To: Dr. Franklin
stare decisis is Latin for "lazy jurisprudence".

Each case should be decided on it's individual merits. Anyone thinking that something that happened in a case 200 years ago has anything other than historical interest in a case today is trying very hard not to think for themselves.

Then again... I still think our entire legal code needs to be burned on a pyre and we start over with a fresh copy of the Constitution and a blank slate.

10 posted on 03/15/2024 12:21:26 PM PDT by Dead Corpse (A Psalm in napalm...)
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To: Dead Corpse
stare decisis is Latin for "lazy jurisprudence".

You failed Latin. stare decisis means "to stand by decided matters", and it is the foundation of the common law. Unlike most of the world which has a legal system based on the Napoleonic Code which attempts to codify the law for every possible, the common law depends upon judges deciding a case to "declare the law" in a decision. When the law applied is different based upon who someone is, or their personal or political beliefs, the result is tyranny.

Each case should be decided on it's individual merits. Anyone thinking that something that happened in a case 200 years ago has anything other than historical interest in a case today is trying very hard not to think for themselves.

The law that is applied to each case depends on the facts. The law does change through the centuries, but if it changes, it must change for everyone equally. Otherwise, what passes for law is just the arbitrary and capricious acts of judges declaring their own prejudices. Admittedly, it has become rare to find judges who apply the law without bias. The Trump cases are prime examples of the law changing because of who someone is.

Then again... I still think our entire legal code needs to be burned on a pyre and we start over with a fresh copy of the Constitution and a blank slate.

Actually, the U.S. Constitution itself effected a change to the existing common law system, as the Anti-Federalists warned. Before the federal era started, juries were more autonomous and could check judges and prosecutors more readily. See the Zenger trial accounts when Zenger's attorney, Andrew Hamilton, appealed to the jury to note the judge's refusal to permit evidence:
"And as we are denied the liberty of giving evidence to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases that the suppressing of evidence ought always to be taken for the strongest evidence; and I hope it will have that weight with you."
If a modern attorney did that in court today, the consequences from the judge would be severe. Before the U.S. Constitution, it was the successful arguments attorneys made to juries which were widely published in the U.S. case reporters, not what the judges said the law was. In the Zenger case, it was the jury which decided that the truth was an absolute defense to libel, not the judge.

The jury was also considered a necessary part of any common law appeal, and cases were retried on appeal at the higher court with more judges present. Fears that cases would be ultimately decided by juries of elitists in the federal capital forced the change codified by the Seventh Amendment, and the Judiciary Act of 1789. After the ratification of the U.S. Constitution with its Supreme Court, state supreme courts began declaring law without juries. That didn't happen much before, because the U.S. Constitution changed the legal system so that the state court system mirrored the novel federal system.
16 posted on 03/15/2024 2:25:22 PM PDT by Dr. Franklin ("A republic, if you can keep it." )
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