Sunday, November 30, 2008

Corley V. United States

At first glance this case to me seemed as though it had been decided with little regard for the protections of those accused. As I read on I could not help but notice all the nice little exceptions of “reasonableness” that are added to the six hour time period before which an accused must be presented to a magistrate and the voluntariness of the confession. I can see how under certain circumstances such as traveling far distances n order to reach a magistrate, as could be the case in rural Alaska, but the term “reasonable” to me seems too broad when it comes to the protection of personal liberty. I know that often times the public sees these protections (the six hour time limit) as loopholes that keep criminals on the street and allow them to avoid punishment, but when there is a well established rule and the extension in the allotted time before presenting the accused to a magistrate is used in order to elicit a confession, I can not help but be put off by the reasonable bending of these safeguards of liberty in order to obtain the confession. These protections not only help protect the innocent, but also help to professionalize and maintain the integrity of the Justice system by raising the standards of care and treatment of the accused in order combat the mistreatment or corruption of the system.

Coeur Alaska v. Southeast Alaska Conservation Council

The issue in this case that grabbed my attention was the debate over whether the Ninth Circuit should apply its own interpretation to the issue of fill materials or whether there should be a greater emphasis placed on the language and interpretation of the agency from the construction of the statute. The brief that I read was obviously that of the side of Coeur Alaska, which I thought I would disagree with just on the basis of pollutants, but then as I read the brief further and really looked at the question presented I started to really see the dilemma as to whether the decision should be that of one based on principles and the desire to protect and preserve the environment, as it was when heard by the Ninth Circuit, or whether the decision should be strictly held to the application and enforcement of statutes that may not be the greatest good or most desirable goal. The Ninth Circuit obviously did not just come out and say well we think this is wrong so we will rule this way, but I do believe that the Ninth Circuit had a lot more discretion and emphasis on principle while using certain facts from the case to steer their principle laden agenda. I really am not to sure how the Supreme Court will rule on this case, but I do believe they will be leaning more towards the application and defining of the statute through the interpretations and statements of the actually agencies.

Tuesday, November 18, 2008

So use this completely off point case to build an argument

The case from Monday involving the case where the defendant entered two pleas, guilty and guilty but mentally insane, was pretty confusing when it came to the chronology of the case. I was really intrigued not so much by the double plea allowed by California but more by the case remanded by the Supreme Court to the Ninth Circuit. I thought that the case the Supreme Court wanted the Ninth Circuit to review was very difficult to make connections between. I did not find the case to be very on point with the issues of the case at hand. I thought this case was going to be a bit more exciting than it was because I thought the court would be arguing over the guilty but mentally insane plea, but rather it was dealing largely with jurisdictions and whether the federal court could find new facts after the state court had already held such a hearing and established facts of law. I am not very up on my legal knowledge but I had thought that facts were to be determined by juries so I was confused at how the Ninth Circuit Court of Appeals was able to find new facts of law. This case seems to have turned into more of a power struggle than that of what I had hoped for. That said it does address the constitutional right to counsel, even if briefly, and that was an interesting topic to consider. So the right to an impartial jury and trial as well as counsel are guaranteed rights, but I kind of ventured off of this case onto a tangent about cases in which a judge and attorney are bribed. I read about a case in which the defendant, who was the one providing the bribe, was awarded a new trial after it became known that the judge had been fixing cases. I see the conflict with the impartial trial, but I also could not help the feeling that this ruling was offending another principle. That said, I do believe that the ruling granting the defendant another trial was the right decision and holds to a stronger set of principles grounded in fairness than the opposite argument that the defendant should be punished for trying to side step justice.

Wednesday, November 5, 2008

Let the bartering begin

The distinction of rights and to who the overriding or more pertinent right falls was very intriguing to me in Coase’s article titled “The Problem of Social Cost”. As Coase begins, he talks about how a sort of agreement can be made between parties in order to obtain an equitable or favorable agreement for both parties, and as his first example applied to marketing and financial gains I was not sure how this equal responsibility to acquire this happy profitable medium would work in legal situations. I thought the case, Bryant v. Lefever held a very interesting decision. The judge reasoned that because the fire was started by the plaintiff and there for the actual cause of the smoke was due to the plaintiff’s actions that he be held responsible for the problem, even when the Defendant had built a structure that trapped the smoke prior to the existence of the fireplace. The decision placed great emphasis on the right to have that free flowing air or whether the defendant was within his right to erect new structures on his land. The problem of the smoke is actually a problem only due to the actions of both parties and because of this it is necessary to review the legal rights of the parties. The distinction made between an economist view on the fair resolution and that made by a judge is an interesting observation because the reasoning behind both come at the issue from quite different angles.

Wednesday, October 29, 2008


Dworkin’s thoughts on interpretation, more specifically the fluidity of it, were pretty intriguing to me. I had not thought of interpretation of an art work as altering although it really does make sense that it not be set and that there be different interpretations over time and even by the same person when viewed through a different perspective. This idea of interpretation not as the intent or frame of mind of the author does however seem to pose a problem when it comes to interpreting law. Using this sort of readily alterable stance on interpretation I think would make the interpreting of law and the application of it from those interpretations difficult in a way that would set up precedent. I do think that more thought needs to be applied when interpreting things than just the mindset of the author or the history or past equated with the work, but this far into the reading I am thinking that there need to be a way of ranking these interpretations as to know which one may be more suitable to the situation than others, which Dworkin did not really seem to think was very plausible.

Tuesday, October 21, 2008

Finding Form

When reading Weinrib’s article "Legal Formalism" the main thing I was contemplating was whether or not a conceptualization being comprised solely of thoughts can be said to be outside the realm of a bias that would influence its conceptualization. I do not think that Weinrib is saying that a bias does not exist in the form of law but rather that law being a concept without a physical type form can not be said to be hindered by these biases, but perhaps even enhanced by them. These alterations to the character or essence of law are what make law of itself because it is found to have characteristics that give it form and being that there is no real startling proof or varying distinction in this form of law it can be said to be one that is an accurate portrayal of law. I think that the distinction between the form and the different sorts of characteristics that help distinguish the form while still allowing for variation and differences within the same general category or form in this case.
I also wondered if the argument that law has immanent intelligibility was at all weakened by Weinrib’s argument about understanding certain characters or forms in relation to other things that share these same or similar characteristics. I guess it does not as you could still group together something that comprised itself by reference back to other characteristics present within the form, but I do think it is an odd way to support classifying something through the use of characteristics that are present in other similar things as how you can see that these things with similar characteristics must all be classified in some category that exists through itself.

Monday, October 13, 2008

Policy v. Principle

Dworkin's distinction between the use of principle and that of policy for adjudication did not seem like it was a new or distinct idea. I believe we have been seeing similar arguments along these lines, which all go back to trying to decide just where the line is that divides the amount and type of discretion that should be given to judges. The idea that policy is or should be the driving force behind judicial decisions is as Dworkin point's out not really applicable to all situations becuase these applications of policy are not very elaborate and do not allow room for the future presently unconcieved cases or situations that are to arise. This is why often times the application of principle as a guidepost to the law can be more beneficial to the process of adudicating namely becuase it allows for wide application and has a broader scope with which to apply to cases. I do agree with Dworkin when he talked about how there needs to be an interaction between the use of principle and policy and that the use of either can not alone be sufficient guidelines or limitaions upon a judges application of the law. There needs and depending upon the case is usually a mixture of these two forms within the discision that is reached. Judges should not strictly be held to follow policy, but should also not be free to run rampent applying principles that can not be consistenntly applicable.