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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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The Philosophical Perspective | 756 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Philosophical Perspective
Authored by: Anonymous on Monday, July 23 2012 @ 11:04 PM EDT
I should point out a few things (and apologize for hasty
typing and lack of editing).

In my section on "state of the art" I'm talking about
judicial interpretation, not statute-writing. Statute-
writing is the domain of congress; if Congress leaves
something vague, judges in the US do not (usually) consider
themselves free to write a sensible policy into this empty
space. Instead they try to decide each case one at a time
as it arises, as best they can using vague and inconsistent
hints gleaned from the statute via basic principles of
interpretation sifted through notions of fairness and
equity, hoping that if they ever get a case "wrong",
Congress will notice and will respond by writing a new,
clearer statute.

Also, even though many parts of the law are inconsistent on
their faces, a lawyer can't afford to wave his hands and
assume that the courts are simply confused and should listen
to him instead. Very often, a complex set of precedents is
more consistent than you might expect, but you have to read
the cases very, very carefully. (This is especially true of
Supreme Court cases on big constitutional questions, where
the lawyers and judges know the previous cases very very
deeply, and the system is designed to preserve (at least the
appearace of) consistency.

In everyday lawyering, you frequently have to deal with two
different courts that simply disagree about the law. The
relationship between district courts and appeals courts is
often tense (we see hints of that in Novell v Microsoft),
for one example, and for another, it happens that the
relationship between the Federal Circuit and the Supreme
Court is currently rather hostile. Even in those
situations, finding points of agreement - arguments
acceptable to both courts- is a very valuable (even
lucrative) skill.

[ Reply to This | Parent | # ]

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