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.

Thursday, September 25, 2008


The whole issue as to whether the application of morality to decisions by judges is normative or a form of convention was at first really not my cup of tea. However, with that said I enjoyed this second half much more than the first and even kind of found the side that I subscribe to, for now at least. I really do think that Coleman has the right idea about convention as the real basis behind morality being used to decide cases. Although this use of convention will not get the same or even readily similar out comes in cases across the board, it does establish a process or framework for approaching controversial issues. If the application of morality was a normative practice I think that the actual outcome of the cases would follow more closely to each other, because not only the use of morality, but the actual morals behind them would be the process or guideline for deciding the issue. Morality as a normative practice would have these morals widely held within society and would also cause a sort of dilemma when different morals were being used to decide the same issue, this is not as large of an issue within the convention approach because there is still a set standard, the application of morals, that guides the judges without holding the particular moral they rely on as accountable but rather the judges would be held accountable that they used morals to approach the issue.

Tuesday, September 23, 2008

Just a few thoughts on Coleman

The law as free from controversy is not really something I hold as a mandatory quality for making something a law. This got me thinking about how when trying to pluck morality out of law and turn it to just facts, this would be an attractive thought that once morality arrived at controversial issues, not holding a majority or accepted principles applied in the same manner, then this hazy area where there is no real sort of precedent and the case is not easily decided by law as fact, can just be said not to be law. I have a real problem with this sort of oh well the law doesn’t apply in this case so too bad and your done sort of ideal. Even in situations where there are accepted or widely held values held in a particular case or instance the principle does not have to be the same one and can be held more important than another principle by the opposing side, this however gets us back to the problem of trying to weigh or rank principle, which I do not see an easy or even remotely logical way of doing this. The law is not void of controversy, and that does not really make it a terrible thing either. I think the tricky thing with trying to interpret principles is the decision of who it is that will be given the responsibility of deciding how to rule on principles when the law as fact does not, as it can never possibly, cover completely a situation. After making the choice of who gets the job of deciding principle then there is also the issue that I think it was Dworkin brought up about if then these judges of principle should or can even be held accountable or responsible for their choice, and on what grounds would one really review or overturn a ruling on principle other than a differing opinion.

Monday, September 22, 2008

What's the Difference?

Kayla Frank

I largely agree with Hart on his distinctions between how and when morals are more applicable, and also as to these morals being more construed as a type of principle that is not intended to be used in each and every case. The application of, or the attempt to pack all things legal whether talking broadly or narrowly into the same thought process and being held under the same constraints is really not very productive. I disagreed largely with the Utilitarian view as Hart described it, when dealing with the issue of extending the purpose of a law to include new or broader cases/instances. The problem I had with this view was that the Utilitarian’s view holds that the extension of the law does not specifically talk about the extension of the principle or specify that the cases now covered will be handled similarly as the ones by which are already seen as fitting under the law. Unless it is to be stated that certain cases are not to be held in like situation, I do not see why when elaborating upon a rule one would place it, even of loosely, into a category and then say oh but we did not mean or intend for that similar case to be viewed using the same principles or purpose as held previously by similar cases. Law as it ought to be and law as it is are overlapping ideas and when talking about where to place morality or how it can be if it should be fit into the mix fits in certain instances and questions of the law while at other times seems to have little or no affect on the law, so to say that law is either completely intertwined or dependant on morals or that it has no place for morals is trying to lump two very different ideas or concepts under one explanation.

Tuesday, September 16, 2008

This reminds me of politics

Kayla Frank

The differentiation between what law is and what law ought to be as Hart approaches it, seems to not be contingent upon the issue of morality. My take on this issue is that although in some instances of law morality can have a place and even seem to be the driving force behind an issue, that the presence of morality in certain situations does not mean that it is prevalent in all or even most laws. I also think that in making a distinction between law and morality, the issue really is not morality but rather the popular opinion of the society. The term morality really bothers me in this sense because it to me holds some form of religious connotation, but as with the entire dilemma of how laws can not be logically cut and dry due to the different interpretations of words and phrases, but morality can also be simply what is deemed as right by the general population and may have little to no influence from religious entities. Because law is not straight forward does not mean that it is flawed or needs to be stripped of the reasoning behind it in order to find the most basic or raw understanding. If this very basic or raw law was to be attained a system in which society moved or alter3ed little would need to be the one supporting such a system. The fluidity of a society is in large part, or at least should be, responsible for the acceptance or rejection of raw or more interpreted laws; in a society where little development either socially or economically occurs laws that are very raw are probably more applicable to the society because there is no change, the need for further explanation may not be present.

Tuesday, September 9, 2008

Trying to Find the Balance

Kayla Frank

To draw the line between what is considered a principle and what is considered a rule, as Dworkin does, is to show the difference between ideals and facts, or at least logically backed thought. Principles are very nice oughts, they possess a kind of dream land quality that creeps towards moral debate, and starts grappling with right and wrong. Rules on the other hand tend to be more cut and dry, less arbitrary, and also keep more distance from moral questions. That is not to say that rules do not attempt to control behavior or that they favor certain actions over others, but that rules are more concrete and a great deal of the time are geared towards action. Rules have a plan; they offer a systematic approach to accomplishing the goal that may not be necessarily laid out within them, but they are fairly independently conclusive. Principles on the other hand have to be weighed. Some things are considered better objectives than others. This ordering of what is a more just or a more beneficial outcome can lead to inconsistency within the application of rules, but on the other side of that, always enforcing rules no matter the consequences hardly seems the best approach. Rules do not leave a lot of wiggle room. That being said about rules, I do not think that law should be without principle.

Sunday, September 7, 2008

After Fighting with the blogger log in

Kayla Frank

So for the second part of the Llewellyn reading I kind of got stuck pondering over the issue of behavior being the basic premise for the written or paper laws which will in theory hopefully be those real laws, or the actual outcome or occurring behavior of officials/ judges/ those with discretionary authority in a legal mater. The laws are written down making paper laws merely because our history has been these forms of written passed along authorities, but Llewellyn makes the point that these written laws only become written laws in order to attain a certain goal or behavior out of them. The sought after behavior is one that a current generation may hope to see enforced in the next and a legitimate way of granting a law this sort of authority is through making it a paper law. With paper laws though we enter into the problem of whether or not these written laws will be real laws, pseudo laws, or completely forgotten laws. This is where I kind of went off on a thought tangent and was thinking about how parents, older siblings, governing relationships of the nature, tend to believe they know the best way for the future, or the next, or the younger less experienced to behave, and if these favored behaviors were given a strong enforcement upon the newer generation maybe the desired behavior could become the reality in behaviors. This made me think more about how you get like really tight Christian voting blocks, these voting blocks I know do not just happen among really devote Christians but it is an example, and how these ideals and desired behaviors are engrained into the strict followers of the religions lifestyles and all of these ideas of good and bad and right and wrong come from an interpretation of what is considered an authoritative writing; the bible. So although some paper laws do lack enforcement I do not think that should really count them out until the right interpreter comes along and derives a new twist or understanding from a paper or written source. I know Llewellyn went into greater detail and talked more about the significance of behavior but I was kind of fascinated and just saw this sort of connection so I decided to blog about that more than Llewellyn’s thoughts.

Tuesday, September 2, 2008

Reading Number Two (Response numero Uno)

I liked how our second reading, by Karl Llewellyn, followed kind of closely with how we were attempting to define law in class. I thought that Llewellyn made an important decision not to try and define law, but rather to talk about the sphere it encompasses and how that can be narrower or wider. By not defining law there is not a focus on excluding certain things, or aspects, from what the possibilities of law are. I thought there were some places where I had been following the same ideas as Llewellyn, like when he talked about how rules and rights are very much intertwined and how it is not simple to differentiate between the two, and then further to differentiate between the ideas of “rights.” The subjectivism within law is something that I had already considered, but that I really do not mind reading about, because I find it interesting how many different ways in this case even one very commonly used word can be conceptualized in an array of different ways, by many different people, which can then lead to many different enforced laws. I do believe my favorite part of the article, well as of yet as it is not finished, would be the discussion as to the fluidity or the malleability of the law, which I suppose is linked back to the subjectivism of law. The criticism that is not only present, but even expected when looking at a set of guidelines or rules that may be enforced very differently depending upon the judge or the community, is largely why it is so difficult to attempt to give law a definition. To define something that is under constant review, scrutiny, and modification is not an easy task; that being said as Llewellyn points out there are certain focuses that may lead to greater understanding of focal points that influence broader aspects of the law categorization.

Hmmm Okay so it is not before Friday

Sorry got kinda side tracked with the holiday and all but here is my blog!