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Post by Viteu Marcianüs on Jan 17, 2020 19:31:58 GMT -6
S:reu Grischun,
My apologies for taking so long to respond. Today was the first proper “office” day I’ve had all week, and my focus stayed primarily on catching up on work.
In any event, thank you for taking the time to participate in this process. The hearing has, at times, been tense, but we would be hard pressed to find anyone who thinks think this has been a colossal waste of time. Indeed, this type of hearing demonstrates further that Talossa is not just a game. But, like everything Talossan, it takes a distinctly Talossan approach. The Senate, organically envision, some might argue, as the somber, upper Chamber that protects against intrusions, opening itself up for MCs and those who are not in Government, for members of the Chancery, etc, to participate is truly unique. You have been a long part of Talossa, and certainly neither of us can deny that we each have played a significant role in our respective Talossanity. So you should be part of this process, and I’m happy that you are here.
Turning now to your questions:
(1) At some point prior to the last election, I messaged Senechal Schiva that I think I could do more to help revamp the Talossan judiciary from the inside. To be clear, we had this conversation well before the election. Naturally, the prospect of whether there would be sufficient support was unknown, and remains unknown, but my reasoning had a lot to do with the fact that the Cort is not at full strength, nor has it been for quite some time. The open seat inhibited the Cort’s ability to fully function. Also, that non-Talossan life happens is a well-established fact, and some of the Justices are not as reachable. This also inhibits the Cort’s functionality. But nothing was being done about it, and no one was stepping up to do anything about it. Presently, the Organic Law precludes a Justices from participating in many other aspects of Talossan life as it relates to politics, and many of us who are active are part of, in some way, the State and politics. I am tired of a lot of the politics. I came back to Talossan because I wanted to help the judiciary develop, not to be bogged down in political arguments. I tried to do this as Attorney-General, but politics. So when I took a step back, I saw an open seat and a way to perhaps help achieve what I set out to do. It was only a boon that I saw myself replicating the ethics places on judges and justices in foreign jurisdictions and retiring from political life. You ask why now? Circumstance, really. I want to aid Talossa develop more, and this seemed like the right time. What compelled me to message Dame Schiva that night? I don’t know. But once the wheels started turning and the nomination would go through, and I kept saying “full and fair hearing,” and the Lord President jumped on that, I thought, “yeah, this was a good time to do it. We are having a proper hearing with thorough scrutiny; people are taking it seriously; and even if it doesn’t go in my favor, Talossa has taken another leap towards actualizing its potential.”
(2) Unfortunately, you and I fell into the pattern of “political enemy = personal enemy.” We fortified it by viewing every post at the other one as a personal slight. I recall in one particular skirmish in Vuode, I used a term to which you excepted because of its connotation. But something sparked in that time, I explained why I used it, you explained why you were affronted, and we both seem to realize that it was a misunderstanding. We agreed to try that approach again in the future—let’s not assume the worst in each other. From there the patterns kinda fell off and we did not need to message each other privately. We both have probably rolled our eyes at the other’s posts, but absent was the presumption of personal animus. From that point we began to find more common areas of agreement. Where we disagreed, even when we’ve gotten snarky, it’s not really taken personally. And now we work together. But to get there, we both had to get over that pattern.
Relationships, be that friendships or acquaintance, etc., can blossom or shrivel. It can happen intentionally or organically. We made a point to change course intentionally—after a while, the intentional, conscious act fell away organically. So this is a bit esoteric, but it’s how I can describe what happened. We made a point to let go of anger and confront each other without those shackles. And, eventually, disagreement was not predicated on perceived intent of the other person.
(3) Keeping with the job interview: Talossa of course! And I watch TV, go to the gym, hiking, hang out with friends. Okay, but seriously, I like learning new things, so I do a lot of reading. I find a topic and devour a few books before moving on. But my time is limited so a few books is like three over the course of five months. Right now I’m all about the science behind deception. I’m about half-way through “What Everybody Is Saying: An Ex-FBI Agent’s Guide to Speed-Reading People” by Joe Navarro. I’ll probably reread Dune after this given the purported 2020 film (Dune is one of my top favorite stories of all time; Wraeththu is my all-time favorite book to read and Babylon 5 is my all-time favorite show). I go to the movies a lot—the movie theatre by us is one of those full restaurant with table service (i.e. husband drives and I get to drink lots of beer while watching movies). What I really do to unwind: travel. I work long hours mostly because I do what I love, so I don’t notice it. But for the husband setting rules, I’d probably work a lot more. This means I burn myself out. But I do that because I try to travel frequently, and I cannot work fully while traveling, so I’m forced to actually relax. I rarely do touristy things, but prefer to find a bar and meet locals. Trips generally coincide on a September/October and February/March basis, with the occasional June/July. Last October we did Tokyo and Kumamoto for the Rugby World Cup; in March I was in London, etc. Next month I’m heading to Tromso, Norway for a long weekend for my (sixth?) trip to some northern place to try to see the Northern Lights (I figured going into the Arctic Circle in Winter might help; I also prefer the cold). And after that, I’m saving up to try Wasteland Weekend in September (RV already booked).
(4) Personal hero = Hillary Clinton (her strength and passion inspires me) and an aunt who raised me (her name is tattooed on my left arm with a pink ribbon); for professional inspiration Judge Cardozo (Youtube: palsgraf legos) and A.V. Dicey (British constitutional scholar from the 19th and 20th Centuries).
(5) The Organic Law a few years ago referenced double jeopardy, but did not actually explain what it is. It assumed we all knew it. I proposed 50RZ26, which amended the Fifth Covenant, to more explicitly define it, even if it doesn’t identify it outright. Double jeopardy, in my estimation, means a complete adjudication on the merits. That is to say, a person has been fully tried, all appeals are exhausted, etc. That does not mean that, until finality occurs, things can be repeated. So say a person is acquitted at trial, but the Government appeals, well there is not finality. But that does not mean the Government can bring new charges. What it means is that the appellate cort can only remand for a new trial based on the original charging document. So basically, double jeopardy attaches to different aspects of a criminal proceeding. Once the charging instrument is accepted by the Cort, you cannot bring new charges for the same transaction or occurrence giving rise to the original charging document unless its still within the statute of limitations. There would be an exception if the trial had not occurred and the Government provided good cause why it needed to amend (say something new was learned). But if the trial starts and the SOL expired, well, that’s it. If the trial concludes, at that level, unless something higher says otherwise, that’s it. Finality, in my estimation and for Talossan purposes, informs double jeopardy. I do not think I am carving out exceptions, but if I am, I think they’re very restrictive. As I would understand Talossan double jeopardy—it comes down to fundamental fairness to the charged party. The Government cannot delay prosecution by reopening those matters of a proceeding already settled at that level.
(6) I’ve done very preliminary research into that, and it was not recent. I don’t know how I would approach it. It’s an interesting concept. Perhaps related to no contest. I am curious if double jeopardy would attach. We do not have “guilty” or “innocent” but “guilty” and “not guilty.” The evidence may not be sufficient to proven guilt,, but that does not make a person innocent. However, the Government only gets one real shot at proving guilt (with the exception of appellate proceedings, but that is limited to what was produced below generally); so “not proven” to me suggests something in the middle—there could be evidence but it’s not yet available, so we cannot make a conclusive determination. I do not know if that would cause double jeopardy to attach.
(7) Interestingly, I was having a conversation with a partner earlier today that touched upon this. I do primarily defense work. In NY, our trial courts (the Supreme Court) elects judges (Justices) (our court system is literally flipped around; our court of last resort is the Court of Appeals and they have judges). Technically, we have one trial court throughout the state that is represented individually in each 62 counties. It’s a weird system. Four out of NYC’s five boroughs (which are counties in their own right) are known as being pro-plaintiff, and correspondingly more left leaning politics. I do not correlate left leaning politics with pro-plaintiff judges because, well, I think the courts in my area go too far. But I can see why someone might. Anyway, the partner said something akin to “I’m pretty left but even I think the judges in this venue go too far” and I reiterated what I said above—I don’t view it as one or the other, but it’s easy to see why. So my experience in defense work informs that politics should not influence decisions. Justices must apply the law. Relatedly, New York recently passed a statute that, for a one year period only, permits anyone who has ever been sexually abused within the State to commence suit (think priests). Leftist V, from 2012, all for it. Leftist-lawyer V in 2020 – WHAT THE HECK WAS THE LEGISLATURE THINKING? How can you even begin to prove claims from the 1950s? It’s nothing on the victims, but how do you begin to gather proof? It’s actually created a huge mess in the courts here. In any event, I don’t get to choose my clients (I’m only an associate). There are some I learn are the complete opposite of my politics. They get the same representation as anyone else. As it relates to Talossa, and I think this goes back to an earlier question, my political positions must be realized through the democratic process, not through judicial activism. If the Ziu passes a statute that is organic, I do not get to eat away at it by interpreting it in obscure ways that is outcome-driven. I have to apply the law to the facts. I may not like an outcome, but if the evidence supports that outcome, that must be the ruling. I’ve been on the losing side where the law and facts are on my side, but the judge renders a decision that is palpably politically motivated, it is infuriating beyond anything in Talossa. I’m not about to become that judge.
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Post by Viteu Marcianüs on Jan 16, 2020 16:42:31 GMT -6
You haven’t done anything that might indicate that your anger at the king has lessened until this hearing. The parties are taking a different approach to each other? Okay. Your resolve has softened? Okay. Life has gone on, and you’re different? Okay. So did you write to the king? Is there a post somewhere before this hearing where you reflect on this and discuss how your feelings have changed? Is there an email that could provide us with evidence about this? Is there anything that shows a change in your attitude before the moment when you stood to gain by it? So then. I submit to this committee that I think it likely that the nominee will find it hard to give any case involving the throne an unbiased hearing, given his emphatic and emotional opposition to the institution and its current occupant. I submit that I think he will likely be asked to recuse himself in all such cases, justly, and that he should probably do so. Those both seem like strong objections to his nomination, which must be weighed against what he would bring to the position. I hope (I truly hope) I am wrong. It’s possible he has a perfect bit of correspondence to submit, and I will breathe easier. Nothing would make me happier, in fact, since I think the outcome of the nomination is not ultimately in doubt. I request permission to reserve my answer (i.e. submit evidence) that may be material to this inquiry pending permission by another (others) to share private conversation(s) with the Committee, or, through the Chairperson, to the Guest before the completion of this Hearing. This request is not proof and should be stricken if no such proof is sent (i.e. don't read anything into it). And V, whatever does happen, I do wish you the best. I may not think this is the right position for you, but that doesn’t change the fact that I’m happy you’re generally doing so well. Thank you. The sentiment is shared.
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Post by Viteu Marcianüs on Jan 16, 2020 12:41:22 GMT -6
Thank you. I only wanted my objections noted for the record. S:reu Davinescu still holds the floor and can ask follow up. My objections do not seek to obstruct that to the extent, of course, the questions aren't repetitive. I await further follow up from the Guest.
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Post by Viteu Marcianüs on Jan 16, 2020 9:34:11 GMT -6
S:reu Davinescu, I would like to make a request that you ask me honest and fair questions that are not worded in a way that leave me either looking ignorant or foolish. If this is to be a proper hearing and one to set the precedent for future hearings, I really cannot see another Talossan voluntarily subjecting themselves to this. Up to this point, I have not objected to any questions, and I have largely tried to answer those that did not really want an answer but just an attempt to publicly flog me without any redress or recourse. But I am now sharing my feelings to the Chairperson and the Committee that this needs to be reined in. I am in one of the busiest work months of my career but am giving up a few hours each day to honestly and openly engage this Committee; I get the impression that you would prefer to see me melt down and withdraw my candidacy, or attack you so that you can say “look!” But neither will happen. As I said at the very beginning and have repeated throughout, there are minds that I will not change in this proceeding. Your line of questioning suggests that you are one of them. That saddens me, but it is what it is. I opened myself up to this Committee fully expecting a full and fair hearing, not a relentless flogging from my political enemies. I will not back down, but going forward, I will be objecting to all questions that have already been asked or that I think are an abuse on the part of the questioner. I am properly billing 14-hour days in my professional life between various motions, appellate briefs, and court appearances. And I am doing that while taking another hour or two to timely respond to repetitive questions that do not always appear to want an answer, but are more aimed at saying to Senators, MCs, and King John “LOOK AT HOW HORRIBLE V IS.” At the end of this all, I will have been the only person to have willfully undergone and engaged this type of public scrutiny for such an extended period of time while keeping it under control. But the tone that is being set with many of these questions would make me think that other Talossans would not. This hearing is beginning to go off course, and the Committee must bring it back in. I have made it a point not to respond to an interviewer’s testimony; but that is a personal choice and not, from what I can tell, a rule. I want to clarify something--in your first set of questions, question no. 2 asks whether I was aware of the procedural rules or the Asmourescu text or that I did not think them worth mentioning. Your question presumed one or the other and did not fairly afford me much play. First, the procedure rules are not used by the Cort, and therefore the mere fact that they are posted is ultimately meaningless. It has been my consistent testimony that rules and procedure must be publicly and easily accessible, agreed to be used by the Cort, and actually used. Second, the Asmourescu text is obscure. It took me a while to find it on Wiki last night, and it is about two or three links deep (hey, the area also has the Dandelion Coloring Book I helped Hooligan make back in 2009!). I likely only found it because I was looking for it. In any event, I read both editions. The First and Second editions have some useful information but are not entirely accurate. For instance, a declaratory judgment is not, as he wrote, one where “No one is compelled to do anything as a result.” I am in several declaratory judgment actions—some of them are literally to tell another party that they owe my client indemnification and defense; others are to say that my client does not owe another party indemnification or defense. The first part, when they come out my way, is literally telling the party to do something. These volumes have a lot of good information, and I applaud Asmourescu for them. They would be a good blueprint for what I have in mind about worksheets, but when I saw an edition entitled “The Practice of Talossan Law,” I thought there would be more on the big cases and how to use them, and less on logical fallacies. Turning to your questions: (1) I have already answered this. 2) Yes and yes. In John’s defense, he must work with/has worked with a republican Seneschal. I see no reason why this is not a two-way street. Plus, a Justice should be apolitical (in Talossa, that might be difficult given the small community). But I am mindful that I have helped establish a precedent whereby non-judicial activity could get me thrown off the bench. If Talossa takes the leap of faith in me that I am asking, I cannot imagine that the Ziu would tolerate me abusing that faith at all. Senenschal Schiva, UrN, 3) This question seems to be the most difficult. King John and I have not exactly been allies, and I have not, in any regard, minced my words for him. He and others know my position on the monarchy. But at the same time, I think he also knows that my critiques originate not from personal animus towards him, but because I see democracy as something fragile and hungry. Democracy dies when we begin to chip away at our democratic institutions. I do not like the monarchy, and I will not pretend that I do to get a seat on the Uppermost Cort. But my concern for democratic tradition and the Rule of Law is greater than my dislike for the monarchy. Against my arguments, the people of Talossa have decided they want a monarchy. They get to decide the extent to which they have a monarchy. That has been my position. They do not get to have that robbed from them by the Cort. I like to think that King John knows that, notwithstanding my personal feelings, if the Organic Law says something is his prerogative, it will remain that way until the democratic process says otherwise, not by me engaging in mental gymnastics and activism through abuse of the judicial process. I also like to think that he understands my commitment to developing and preserving the institution of the Cort as a truly neutral arbiter of matters. So do I expect a Royal Veto? I honestly don’t know. I will ask this—while I invited King John to ask questions in this Committee, I would prefer that he not share his inclination unless he felt it was necessary before the actual vote. By that I mean, to whatever means he thinks it is necessary, I would rather him come to an honest decision on his terms. You will note that in the above I use “King John” throughout. I would also point you to the case that I brought regarding public holidays back in June 2019 that was never heard for whatever reason. talossa.proboards.com/thread/13469/petition-organicity-53rz4-53rz11-lex?page=1&scrollTo=165059 You will note that, in that brief, I cited to Talossan case law, referred to Kin John as His Majesty, made it a point to state that the matter was to clarify the Organic law and not personal, and even provided King John with the brief five days before filing it so he would be prepared. That, Sir, demonstrates that the puffery I used to describe my feelings about the monarchy would not translate into judicial activism or partial proceedings if I were on the bench. Also, my recent engagements with King John, preceding this nomination, have been collegial. His commitment to using the veto sparingly and attempting to preemptively make his feelings about legislation known has softened my earlier stated resolve. So you want to know what has changed? Um… life and circumstance. The respective parties are taking a different approach with each other. I outright reject your characterization of my use of “John” or “the King” or “the Crown.” I used the term I thought was appropriate at the time. You ask for assurance that I would be impartial in all matters involving the Crown. See the answers above and the cited case. (2) I would not recuse myself. My history with King John is a mixed bag for sure, but my resolve has soften significantly. Not to mention, how I view the role of the cort is fundamental. So your prior question that is topical to this, I responded as follows: S:reu Davinescu, (6) I cannot other than what I have already said. My role as a Justice would be to apply the facts to the law. I may not personally like a law, but I cannot just strike it down or eviscerate it. I cannot render a decision in such a way to render it obscure or obsolete. I have had the privilege of serving a term as an appellate clerk doing legal research. I may not have liked a party, but I had to give the court objective, neutral reports and not cater my research to where I thought the case should go. I am not trying to abrogate the King’s authority through a judicial position. Frankly, if the Organic Law is clear on the Crown’s authority, then it should be abrogated through the democratic process. My personal feelings have nothing to do with it. I mentioned this earlier but I do view these positions as necessarily forfeiting some rights. To maintain impartiality, I would need to restrict my public commentary. I cannot take back what is out there, but I can make it a point to act in the manner that is expect of a Justice if I’m appointed. Now, again, I do not think I will change many people’s minds on this. But I hope that, if appointed, my conduct would change those minds down the line. Respectfully, Sir, but I do think at this point we are spinning our wheels at the same issue. We have not skirted the issue, but already addressed it directly. I have not convinced you and likely will not convince you. I may not have convinced a majority of the Senate and two-thirds of the Cosa, or King John. That would be unfortunate but the reality. 2) Only some really big cases implicate the Crown, and it is not as widespread as you might think. Looking at the last 16 years of Talossan jurisprudence, many of the UC cases do not involve/implicate the Crown. Here is a list: 2015 Cjantscheir et al v. Itravilatx et al (UC) did not implicate the Crown; 2013 Lowry v. Chancery (UC) did not implicate the Crown; 2008 In re Petition of Ieremiac’h Ventrutx (UC) did not implicate the Crown; 2006 Hooligan v. Chancery (UC) did not implicate the Crown; 2006 Betineir v. Chancery (UC) did not implicate the Crown; 2005 Senats Vacancy Ruling (UC) did not implicate the Crown; 2005 Dandelion Case (UC) did not implicate the Crown; etc. So now, if a recusal is warranted, it would not mean recusing from most of the biggest and most common cases, because precedent is that most of the past and biggest cases do not involve the Crown or King John. Recusal would be taken on a case by case basis. I have said things about King John in anger before, but as I stated above, my position has softened a bit. Our last interaction in Cort was collegial and literally based on a disagreement in the Organic Law. There was no personal animus attached to it. We sought the Cort’s instruction. That is the precedent that is set. Also, I am excited that King John will have the opportunity to interview me in this hearing. I am excited that this is the rare exception where King John can enter the Senate because the process necessarily involves him. Sir, can we be square with each for a moment? Can we each just be completely honest to the Committee? There is absolutely nothing I can say short of withdrawing my nomination that will make you happy, and any answer I give will be viewed as wholly insufficient. I would ask that you acknowledge simple truth. 3) It was unwise to use your full name over your objection on Witt, I will concede that. Was it awful and erratic? Was it as vile and all of the other adjectives used by Senator Pinatsch. No. In fact, you helped set the legal standard that made my use of it permissive (see e.g. 2014 Marcianüs v. Davinescu et al.). You had used your non-Talossan name in Talossa before. During that episode, your name was still on the Wiki. Under the case that you defended, it was established that you placed your full name in the public square and, therefore, it could be used. Was it unwise and a tad bit childish in retrospect, sure I’ll go that far. But was it vile? Was it profane, erratic, volatile? No. Sir, you are dismissive that honesty should be valued over civility. Yet I have never lied or betrayed the trust of Talossa. I cannot say the same about others who have asked questions in this Committee. With that said, I do wish to note my objections to Lüc da Schir regarding the quality and numerosity of these questions. Thank you.
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Post by Viteu Marcianüs on Jan 15, 2020 19:31:48 GMT -6
One last thing about Talossan jurisprudence, when I read the UC's approach to exercising certain authority, and its warning in Injunctive Relief, that sufficiently curtailed my concern about Erni.
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Post by Viteu Marcianüs on Jan 15, 2020 19:29:07 GMT -6
How do I answer that?
I mean, is it really uniquely Talossan that practice is defined by what you can do without someone raising an objection? It seems like nation-states pretty much follow this practice as a matter of course.
In any event, this standard, labeled the Talossan Tradition Test, has another component that resembles the jurisprudence in other countries: “The Cort is more impressed by timely passion, timely argument, timely objection.” When I read that part of Erni v. Talossa, what I understand the Cort to mean is that Talossans will ultimately view an otherwise valid objection as waived if you do not assert it soon enough. The Cort certainly took this position, and it's one seen in other jurisdictions.
Erni v. Talossa is also a mixed bag. On the one hand, it speaks a lot to Article XVI Section 5 of the Org Law, and should be cited more. Its plain language test, Talossan tradition test, and legislative intent are informative, and certainly are topical to Talossa today. On the other hand, it concludes with this line, “The Cort is also excited to acknowledge its wide-ranging injunction powers-powers it almost itches to exercise.” That gives me pause—the Cort should never itch to exercise power. I am of the mind that the Cort should exercise its authority sparingly, especially when it comes to injunctions. That the Cort was itching to issue an injunction suggests to me that the Cort would consider setting aside legal standards merely to say “Look what I can do.” Of course, that was probably not intended, and it is ostensibly more of a warning when taken in context of monitoring the election, but standing alone, the line should not be followed. Absent that one issue, I think Erni is a great example of the type of legal reasoning that our corts are capable of.
In terms of unique Talossan precedent, I think Marcianüs v. Rt. Hon. Davinescu et al, Case 14-03, from the former Magistrate Cort is quite on point. What other country would face that circumstance? But in any event, it’s a pretty great illustration of how the Cort should approach new issues and develop jurisprudence. That matter implicated the right to privacy as it relates to the control of one’s publicly posted information in Talossa. It addresses the Covenants and, because it was novel, took a common-sense, logical approach to provide four tests to resolve the issue. The Cort then applies each test and explains its reasoning. Although this is not binding precedent, it is highly persuasive and indicative that Talossan further develops Talossan jurisprudence. The right to privacy and the control of one’s information under the Covenants is implicated in that matter. In any event, the Cort does what it should do: an issue was posed, and the Cort came up with a four part test that is logical and easily understood. It did what it was supposed to do. That matter is another excellent illustration of the type of legal reasoning that our corts are capable of.
(To preemptively answer a question about my thoughts on that matter some six years later—the Cort did what it was supposed to do and I cannot say I necessarily disagree with it at this point. While it provides only persuasive authority, if I were confronted with a like matter, stare decisis dictates that I apply that test. Departure would only upset the law. Of course, a matter with distinguishable facts might cause a different outcome, but the legal standard should be followed. If the facts were so unique that it simply did not work, but the matter was still related, the cort should expand the text, not overrule it. Say a fifth part of the test to compliment what is already settled. Setting aside settled law should only occur when attitudes and circumstances have so changed that the prior rule is antiquated and no longer applicable. The cort needs to explain that, however. It should not just give a conclusory statement, but provide why it concluded the rule needed to be overturned.)
For another unique Talossan precedent, we need not look further than In re: Petition for Injunctive Relief re: OrgLaw Amendment (UC). There, the Uppermost Cort, acting in its role as an appellate bench, cites prior UC jurisprudence, interprets it, and applies it to the facts. The UC, of course, can overturn itself, but that did not happen there. This further illustrations that Talossan corts are, in fact, capable and can apply case law and stare decisis.
Each of the foregoing cases provide guidance, and certainly Erni and Marcianüs may speak to issues associated one’s right to privacy, to protect information made public available, and immigration applications. OrgLaw Amendment shows us how the UC can function and that it can cite prior cases.
Turning now to your questions directly: I cannot say if this is only because you have not read more cases. But you are also not practicing law in Talossa, so why would you read cases? I mean, outside of maybe a few people, do you know anyone (not a lawyer) who just reads random cases from courts? But the issue may also be that the Cort and Talossan lawyers need to do a better job at citing earlier decisions. Part of this issue has been previously addressed—not all cases are easily accessible and many Talossans may not be familiar with how to use a case. I think some training, as I outlined in an earlier answer, would help that. But the Cort itself should do a better job at this. The Cort has demonstrated that it can do a better job at this. The rarity of cases, to me, creates a bit of circular logic. Let’s go with that proposition that Corts and lawyers do not cite cases because they are rare: is that because Talossa is not litigious by its nature; or is Talossa not litigious because people do not have easy access to prior decisions to know that they can seek judicial redress? Is the lack of knowledge about prior matters the reason that we do not have more matters? Is the lack of easy access to cases and procedure preventing a party from attempting a suit because they do not know how? Does this inform why the corts and lawyers do not cite cases that are related? I think this is a hard question and my answers are mostly speculative based on what I perceive. But perhaps we remedy some of those issues and see what happens. If someone is willing to do it, let’s get a case reporter together with indexed cases, let’s get some explained rules established with forms. Etc.
To your final question—Talossa has a body of uniquely Talossan law. I think most cases take that into consideration, even if it looks to guidance from outside of Talossa. In my estimation, it is likely that one will find a Talossan approach to standards adopted from external sources, thus making it uniquely Talossan. And who knows, maybe some basic information, as described above, with a simple “how to” guide will help this along. As I said earlier, we should not forget that the legal systems in our larger neighbors were also developed by enthusiasts over years. I see no reason why that is not the case here.
_________ I want to apologize for my delayed response. Your questions took some thinking. Finally, I said I would state this at the outset, but tomorrow may be a busy day for me, so I do not know how quickly I can turn answers around. I hope that I will be able to respond timely with follow up. If, however, my responses are delayed, I leave it to the discretion of the Chairperson to give an appropriate remedy.
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Post by Viteu Marcianüs on Jan 14, 2020 4:30:49 GMT -6
1) If there is not a majority, then it’s working with those who respond. If no one responds, then at the very least I can introduce rules and procedure when I’m sitting as a trial judge, and nudge those who would sit on a panel with me to adopt them for that panel. Other projects, such as putting together fill-in forms to file complaints and whatnot would not require court approval as it would contain all the relevant information to bring an action. I want to work with everyone on the cort; but if I must go at it alone for a bit, I will do just that. It would mean that my approach is not the shared approach of the Cort, but if I am assigned to a case, the parties will know what to expect.
2) Yes and yes. In John’s defense, he must work with/has worked with a republican Seneschal. I see no reason why this is not a two-way street. Plus, a Justice should be apolitical (in Talossa, that might be difficult given the small community). But I am mindful that I have helped establish a precedent whereby non-judicial activity could get me thrown off the bench. If Talossa takes the leap of faith in me that I am asking, I cannot imagine that the Ziu would tolerate me abusing that faith at all.
3) Transparency – yes. But not all rulings will be readily understood by a layperson. As jurisprudence develops, certain legal terms of arm will develop with it. That can be confusing to a layperson. I’d like to ensure that those instances are provided somewhere, whether that is wiki page, for those who are not Talossan lawyers to read. Do not think this is unique to Talossa. Ask an American attorney what it is to be professionally embarrassed, and you’ll hear something like, “the Judge scolded me” or “my client was horrible.” Ask an Australian barrister the same question and you’ll get “I had a conflict of interest arise.”
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Post by Viteu Marcianüs on Jan 13, 2020 22:57:25 GMT -6
Yup!
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Post by Viteu Marcianüs on Jan 13, 2020 21:47:31 GMT -6
Senenschal Schiva, UrN,
Thank you for putting forth my name as a nominee to vacant position of Justice to the Uppermost Cort of Talossa. And thank you for your continued confidence in my legal abilities.
Okay, I will jump right into my answers.
1) I understand that no justice could act unilaterally regardless of seniority. To your point, as the junior most justice, I would have the most to prove. The Court has not had a new justice since 2015!
As you are very much aware, many others and I have worked tirelessly to get the judiciary fully functional in recent years. But we must be honest without ourselves that Talossa is not a particularly litigious society, and only major issues seek judicial review. The slow wheels of our judiciary also results in many matters going unadjudicated, and the parties sort of resolving the matter for themselves. One can easily view this as a cause to the lack of litigation involved in Talossa, and that may on per se be a bad thing. But the problem here is that the Cort too often does not address matters or issue final decisions
I cast no blame or seek to explain the reasons for this other than—real life happens. Regardless of a party’s legal experience, there is a certain expectation of what the Cort is expected to do. And often, the role is thankless, with as many detractors as there are supporters. Talossa rarely finds issues that receive virtual universal support, and if they do, chances are, it’s not before the Cort.
In my roles as a Member of the Cosa, a Senator, Attorney-General, Distain, I have explored different avenues to get the cort functioning from the outside. Almost never can one find a consensus. But what I do observe, along with many others, is not necessarily a systematic change to the judiciary, as I have been a strong proponent, but a systemic change to the judiciary. The type of systemic changes that are needed necessarily require the willingness of justices sitting on the cort.
Those systemic changes or improvements would come in the form of finally getting the National Bar set up. Of course I could not go at it alone, or institute a bar course or bar exam without others supporting me. However, we should not ignore a cardinal rule of Talossa—more people are likely to do something after one or some take the initiative. I do believe that I will need to have a dialogue with the other justices, but I am willing to do the heavy lifting and provide the framework for them to modify. That involves, as mentioned, a bar exam and course, instituting more procedural rules, accompanies potentially by commentary to explain them, forms for all litigants, and discussion to ensure that all justices are on board and that we all agree to adhere to some common set of guidelines, and certainly one set of rules when sitting as the Uppermost Cort.
I am not delusional in thinking that I will waltz on into the Uppermost Cort and fix everything overnight. But having been on the opposite side of the bench since at least 2015, I am in a position of feeling the effects of a lack of cleaner procedure, or differing approaches in how litigation proceeds, than some of the Justices.
The question is how can I fix the Cort from the inside—well, I can put together the rules and procedure and propose them to the Cort, try to get them to adopt it. At the very least, I can have clean rules for when I act as a trial judge, and I can ensure that my decisions look at Talossan law and jurisprudence in the hope that other justices begin to do the same. In more hard labor terms, I can also lend my thoughts, when asked of course, or my help, when requested, on deciding matters. Ultimately, if I am appointed, my first question to the rest of the Cort is—how can I help?
2) Sir A. Dainescu’s question triggered a thought I had a while ago but, because many other things came up, got put on the back burner—We need an official reporter. As its writing a decision, the Cort is in the best position to identify the topics. The cases could be given to the Clerk, with topic headings, who would assemble them in volumes. The topics would be kept in an index for ease of reference. Looking for a case on a certain topic would mean looking at the index, seeing what has been decided, and going right to the volume with that case. I imagine that this would start prospective with future decisions, and there can be an “early reports” volume collecting all prior cases. Given that each would need to be meticulously reviewed to ensure subject matter and whether it is still good law (or been superseded by statute or another case), that will take a minute. But the key thing is to come up with a way for every Talossan to have equal and easy access to cort rules and procedure, and most importantly, cort cases. It is my intention to hopper something to this effect shortly.
3) This question seems to be the most difficult. King John and I have not exactly been allies, and I have not, in any regard, minced my words for him. He and others know my position on the monarchy. But at the same time, I think he also knows that my critiques originate not from personal animus towards him, but because I see democracy as something fragile and hungry. Democracy dies when we begin to chip away at our democratic institutions. I do not like the monarchy, and I will not pretend that I do to get a seat on the Uppermost Cort. But my concern for democratic tradition and the Rule of Law is greater than my dislike for the monarchy. Against my arguments, the people of Talossa have decided they want a monarchy. They get to decide the extent to which they have a monarchy. That has been my position. They do not get to have that robbed from them by the Cort. I like to think that King John knows that, notwithstanding my personal feelings, if the Organic Law says something is his prerogative, it will remain that way until the democratic process says otherwise, not by me engaging in mental gymnastics and activism through abuse of the judicial process. I also like to think that he understands my commitment to developing and preserving the institution of the Cort as a truly neutral arbiter of matters. So do I expect a Royal Veto? I honestly don’t know. I will ask this—while I invited King John to ask questions in this Committee, I would prefer that he not share his inclination unless he felt it was necessary before the actual vote. By that I mean, to whatever means he thinks it is necessary, I would rather him come to an honest decision on his terms.
4) I think the Cort tries, honestly. A judge must be willing to make tough decisions and withstand public scrutiny. The Cort’s strength must come from a multitude of voices that rely on some type of authority for their decision making. The Cort will instill confidence in its ability when it explains its thinking in terms that make sense, even if unpopular. But to do that, matters need to be heard by all of its members, not just one justice. When sitting as trial judges, the cort will look to itself for guidance. A judge may get an initial impression looking at a matter, but if another judge decided something similar, perhaps reading their decision will turn on a light bulb. With all due respect to those on the cort, right now there is really one primarily active justice, two semi-active justices, and one nonactive justice. That is not only hurting Talossa, that is hurting the judiciary.
Now, we can only speculate (and go by their reasons that they share) as to their present activity level. That could be any reason, but also, it’s a lot of work! It is my hope that, if I am appointed, I can reach out to all of the judges to offer to help them. It is my hope that we can work together as a team to find a way to assign matters, set rules and procedure, and help each other administer justice. I think Talossa is a very forgiving place, more so than some might believe. And I think in that forgiveness we give the present cort the benefit of the doubt. I imagine this will be controversial, but I think our forgiveness, general understanding that Talossa is a hobby, and being told what the Cort ought to be is what sustains its authority. I’d like to help improve that by helping the Cort rebuild its authority based on what it ought to be – the impartial institution that Talossans can turn to for legal redress.
I want to add that even in the most developed common-law judiciaries with the most entrenched Rule of Law, we will all find a case, or line of cases, that we do not think should be binding, or that we want to see changed. So I am not suggesting that any individual case has eroded the public perception of the Cort, but the inaccessibility and lack of easily obtainable legal redress has resulted in the Cort’s authority being borrowed. Again, and I hope everyone who has read this far realizes how much I am stressing this—non-Talossan life happens and I am not disparaging anyone for that. I will have periods of inactivity. But that should not be an excuse for an entire branch of government being quasi-functional. I also want to really underscore, the Cort tries, but perhaps it and those who come before it can commit to doing a slightly better job.
At the end of the day, I think I can help improve the judiciary and to work with other justices to get it functioning as many of us hope it would.
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Post by Viteu Marcianüs on Jan 13, 2020 9:46:50 GMT -6
Thanks to our presiding officer for an orderly hearing and to our hearee for a positive, well-mannered, and spirited one. 1. Mr. Marcianüs, when real life hands you lemons, what will you do to make very sure you channel your angst in such a way you do not go off on a scree and fit in the Cort? It is rare when you do this, but it is troublesome to some. 2. In terms of the law, how much of a literalist are you, and what does that even mean? I yield the rest of my time. - GV (1) I'd prefer to use those lemons over some fried halloumi cheese (it's a real problem of mine in fact; and $17/lb, this has become a really expensive addiction). In the past, I have not done the most stellar job at walking away from my keyboard, or realizing that I am using Talossa as the vehicle to express some frustration that has nothing to do with it. That's a character flaw that I have been working on for years. Part of how I process anger originates from some unfortunate events growing up (who in Talossa knew that V is, in fact, a high school drop out?), and you'll have to take that conclusory statement as face value. I am generally an open book about this stuff and would discuss that with you privately, but not in a setting where everything I am writing is being scrutinized. In any event, taking a step back from Talossa in terms of political life will aid me in this. Also, I want the Cort, and, if appointed, my position on the Cort to always been seen as fair and impartial and one that bolsters the Rule of Law. This obligates me to conform my behavior in a manner that achieves that goal. And it is not something I am necessarily unfamiliar. When I first went into litigation, I began working with a partner on a motion that we were sure we were going to lose. The partner kept saying, "we're going to lose this, so don't be upset." Anyway, the day of argument, I am one of five or six attorneys, and the last one at that. The Court goes down the line asking each attorney whether they oppose and how my client would appear in the case. At the end, she does not really say anything to me, but I politely interjected to clarify one fact on the record. I spoke for maybe five seconds. The judge's look at me can be described as, "Counselor, thank you for clarifying, but read the tea leafs and shut up; i'm obviously granting your motion." So, learning to shut up is important. A few weeks later, I appeared for what was my first proper motion. I wrote it from the beginning, did all of the research, knew the law. It concerned a recently amended statute. I was completely right on the law and the caselaw. The Judge looked me straight in the eye and said, "I do not care what the law says; motion denied." I was furious. The Court knew it could get away with it because they knew I would not appeal it, and in that particular court, an appeal would take years. But I had to say, "Okay Your Honor," leave the courtroom, and process the anger elsewhere. Trust me, I had some choice words for the judge, and I still do, but I would never approach that judge, even outside of Court, and tell her those words. I can state I disagree with her, but I have to be respectful. More recently, I was arguing another motion before the Court. As against one party, the judge started off by hounding me with questions. Now, he seemed amenable to my position, but there was that one hiccup that he could not get over. Truthfully, this was an argument I had to put in although I did not think I had a strong chance of winning. The second argument was the primary one. When we got to that, the Judge did not even acknowledge me, but instead was hounding codefendant. Counsel was talking in circles, and also slightly misrepresenting the facts. But remembering my earlier experience, I shut up. The Court was obviously on my side here. Trust me, I could feel my bottom jaw quivering. I wanted to jump in and correct the record. But I had the voice in my head saying, "you don't need to do it; if you speak you will likely hurt yourself. Let the Court do its thing." Anyway, I ended up winning the main part of my motion. I can provide more examples of times that I have been in a court and wanted to mouthoff or say something but knew to shut up, or responded in an appropriate fashion. I know that I am not helping my clients if I do not control my emotions; I can be passionate but I have to be respectful. I also know that, when you are on the other side of the bench, you have to show impartiality and not let your emotions get to you. I will end this answer with this - I keep getting asked for reassurance about my conduct if I am appointed. I understand the concern and acknowledged that I expected these questions. I have never said that anything I am saying should mean not asking these questions. But the answers will start to be repetitive. I know everybody wants reassurance, and I want to give them that reassurance, but I am beginning to come to a loss as to how I can do that as all possible answers have been exhausted. As I said at the beginning, I do not necessarily expect to change a lot of minds on this issue, but, if appointed, I endeavor to change those minds through doing the job. That will take faith and the benefit of the doubt from some Talossans. I am respectfully asking for that. To the extent that, in my opening speech, I said that the seats should only go to those that are, among another thing, deserving, I want to modify my use of "deserving." Upon reflection, nobody deserves any position in Talossa (except for those honorary titles that are meant to award behavior). Nobody deserves to be King, nobody deserves to be Seneshal, nobody deserves to be a Justice, nobody deserves to be an MC, nobody deserves to be Secretary of State. These should not be positions that we hand out because of someone's long history of work in Talossa. In my estimation, when we are deciding who should be any of those positions, what we should be asking is: Is the person qualified? Will that person enhance the institution? (2) There are different approaches to interpreting the law that judges take. Literalism is one of them - just read the words; no external sources; and the words themselves must always provide answers. This is a strict "the judge does not decide what the law ought to be" approach. But this, I believe, hurts equity and justice. It does not account much for inconsistency in a statute or the organic law. I favor a more doctrinal approach under stare decisis - cases are decided in a consistent fashion, and we deviate only when absolutely necessary. Now, the Organic Law does indicate how a Judge should decide a case: follow exact precedent (extreme stare decisis) when exactly on point; where there is no exact precedent, come up with a new rule by reinterpreting an old rule or by applying what it considers principles of justice consistent with the Covenants. But the courts must render decisions with due regard to the original intent of any law, and if there is a difference in interpretations as to the meaning of a law, the court should render an official interpretation with full respect to the Covenants. As someone who favors a doctrinal approach influenced by the living tree doctrine, my approach is in line with this direction: use what we have to decide matters to keep the law consistent; when there is no on-point decision, look to what is available to come up with a workable rule; defer to the statutory intent when necessary, and always keep the Covenants in front of you. Judges should refrain from rendering decisions based on what they think the law out to be. But Judges should not allow blind application to result in injustice. Judges should not just set aside statute or law, but if a specific set of circumstances would cause injustice, then it should as narrowly as possible rule in such a way to mitigate that injustice. Also, generally speaking, if there is one main issue that disposes of a matter, the court should refrain from using dicta to decide other issues. To answer your question directly - i'm a literalist insomuch as if I read something and it is plain and obvious, if the result does not result in a patent injustice that violates the Covenants, then I would render a decision even if I disagree with the result because, well, there's no real ambiguity or play in the joints. It's plain as day and it's not my place to rewrite statute or organic provisions.
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Post by Viteu Marcianüs on Jan 13, 2020 8:01:01 GMT -6
Speaking as both a sitting Justice and also as a member of the Cosa, it can get quite boring being a justice especially if that is ones only role. Further limiting their chances at other civic engagement does not encourage participation. That makes sense. Present language: Neither a reigning King nor his Consort, nor a Regent during his regency, nor the Secretary of State, nor the Seneschal, nor any public prosecutor, nor any Senator shall be a Justice of the Cort pü Inalt. Updated proposed amendment: Neither a reigning King or his or her Consort, nor a Regent during his or her regency, nor the Secretary of State, nor the Seneschal, nor any public prosecutor, nor any other member of the Cabinet shall be a Justice of the Cort pü Inalt. The initial thought was to bar the most patently political positions, which is, in my estimation, the Cabinet. But the Cabinet is more transitory anyway. So it may just be removing the bar on Senators. I don't see why other apolitical civil servants should be barred. A Justice can be a Scribe with minimal concern for conflicts.
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Post by Viteu Marcianüs on Jan 12, 2020 22:41:08 GMT -6
I'm typing this on my phone to get an answer in before you no longer hold the floor; so it will be a bit more disjointed with an extra dash of typos.
To your first question, many Talossans have expressed concern with the prospect of an unyieldly court. But when I look at our current Org Law, that part speaking to the judiciary does not really set many parameters. When drafting the proposed amendment, I kept a few things in mind- the judiciary reform amendment that I did not reclark over veto, our old Judiciary scheme, the approach found in the US Constitution, and the feedback I received last time.
The reason the prior act was called a Reformation was because it sought to return the UC to its prior state but with flexibility. It would reform to an earlier version. But, upon reflection, I think the authors of the present scheme were on to something by allowing Justices to sit as trial judges. So I wanted to find the middle ground between the present set up and the old. The driving force is to create a flexible judiciary that can modify as Talossa grows. We should be able to modify our judiciary without an Organic amendment so it can address Talossa's needs. I hope that I have laid the framework for what could be a workable amendment that (1) sets the judiciary up as a co-equal branch with proper limits; (2) enables the Ziu to modify the Judiciary as needed without touching the Org Law; and (3) encourages new people to have the opportunity to sit on the Cort or have judicial roles.
To that end, I wanted to be a bit more clear on the Corts authority. I do recall, at one time seeing, a similar provision in the Org Law, but I feel like I'm mistaken. In any event, the idea that the UC can hear appeals from Provincial Corts likely stems from the US Constitution, although I'm sure the Australian and Canadian constitutions have similar provisions. Talossa is not, in my mind, a proper federation, although our Org Law implies it is one. We needn't go into the why. But I'd prefer a more federalist approach if the UC did act as an appellate Cort to provincial corts. That is, unless the matter concerns the Organicity of the provincial statute, or where a provincial statute may be in conflict in with a national statute, or where maybe the National government may overstep bounds. The UC would also ensure that a provincial government respects the Covenants.
But in a dispute strictly about a provincial issue, where there is no national question or no Organic issue, I would expect the UC to respect the provincial law as equal and decline to hear the matter.
Now, I don't think this will be a huge issue. Even if we got more active provincial corts, unless the case involves a national issue, it really should stay in provincial corts.
(2) My explanation was a bit unclear. To me, there is law and equity. Law comes from statutes and rules and the common law. However, overtime, the law would result in unfair outcomes. So we had the Courts of the Chancery. From there we developed equity as a response to law. But equity became ingrained, and in itself became a source of law. Equity became predictable.
To better illustrate the difference, I'll use a simple hypothetical from law school. US contract law does not like to force parties to stay on contracts they don't want to be in. We don't punish breaches (generally). Remedies should make a party whole.
So here are some examples from my law school days. Example.1 -
You ask me to mow your lawn for $100 per week for 10 weeks, total $1,000.
I accept, quit my job, and get ready.
You then find out that Lüc will do it for $50 per week for 10 weeks, total, $500.
So I have a duty to mitigate. I find another position that will pay me $75 per week for 10 weeks, total $750. My damages now are $250. Under the law, I can recover that from you. So you only pay, $750 ($500 to Luca and $250 to me) and save $250, and I get my full $1000. I am made whole. This is compensatory damages. It's a legal remedy.
Example 2-
You offer to sell your home for $100,000. I accept and we sign the paperwork. But Lüc comes along and offers $200,000. You tell me that you intend to breach. What am I to do? This is different than a service. While we do not want people to be forced into contacts, we don't want parties breaching like this because it hurts the public. And how do you actually remedy this breach? Do I force you to pay the difference on another house? That's too much involvement and too complicated. A strict application would mean you sell the house to Luc and, well, I'm SOL. I'm not really damaged because I still have my money. So the law results in an injustice. But equity comes along and says, "nope. We can't tolerate that. It's one transaction. HONOR IT!" So we have specific performance. It is an equitable remedy to prevent an injustice that would result from a strict application of law.
The first example is law; the second is equity.
Both are pretty common today. Even though we call one equitable, it's basically a legal principle at this point. So when I use lower case l and lower case e, i mean, these old concepts of law--statutory and common law. When I say equity, I mean the old chancery approach that has basically become a form of law. So law+equity=Law (capital L).
Now, I don't think Equity, as a concept, is lost. Sometimes Law (equity+law) can still result in an injustice. The inherent equitable authority of a court permits it to come up with a new solution to mitigate or prevent that injustice, that's when Equity properly comes out. It's rare and extreme. So in that sense Law+Equity=Justice. But that equitable remedy may become more common, so the one result now becomes lower case equity that becomes Law.
So that's what I mean when I speak of the two. It can be confusing because equity can mean what we all know it means today, or Equity as an inherent power of the Cort to prevent injustice. Law can mean accepted equity and codified law and common law, but if it causes injustice, Equity steps in to prevent it.
I hope that helps.
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Post by Viteu Marcianüs on Jan 12, 2020 19:28:43 GMT -6
S:reu Bornatfiglheu, Thank you for taking the time to participate in this hearing.
I will dive right into your questions.
(1) I think perhaps you misunderstand my position about the court’s recent function. While the inquisitorial approach is found in the civil law system, while the adversarial approach is found more in the common-law system, they are not mutually exclusive. I am not a fan of the civil law’s ability for a court to reinterpret anew a statute based on every single case. I am of the mind that the consistency under the doctrine of stare decisis found in the common law, in which courts of direct higher authority issue binding decisions on the lower courts, but courts of coordinate jurisdiction tend to look to prior decisions for persuasive authority, favors consistency in law. Now, given Talossa’s small size, I am open to the corts becoming more inquisitorial, that is, the Cort taking on more of an active role in investigating issues. But I would prefer this approach with more explicit procedure so the parties know how to act and what to expect.
If appointed, I would aim to work with other members of the Cort to discuss which type of proceeding, adversarial or inquisitorial, would best work for Talossa, or if it is should be a hybrid of some sort. Perhaps there is not a once size fits all, and in some circumstance, the Cort should sit back and let the parties proceed in an adversarial fashion, but in others the Cort should direct the parties. But that needs to be explicit and occur before proceedings. You should generally be able to enter the courthouse and seek redress knowing how, procedurally, things should play out. That’s what I think is absent presently. This does not necessarily speak to judicial philosophy per se.
(2) I do not view the function of the law any differently in Talossa as one of our larger neighbors. The analogy I drew between your crimes and Sen. Pinatsch’s concern the lying to Talossa. Of course there are more differences, but when I look at how your matter proceeded, the court of public opinion was firmly against you, so the cort in the first instances seemed more open to letting certain things slide. But in the recent matter, the Senator is quite popular and liked, and suddenly issues that could have been raised in your case were dispositive in the instant matter. I think this defeats the Rule of Law in that no one is above the law. So your assessment hits the nail on the head—it’s about the necessity of the law acting impartial and without concern for what may be popular. Judges have to make tough decisions; they will not always be popular. Some will be criticized. But how the Judge applied the law should be beyond the reproach. The criticism should not suggest that the Cort favored one party in one matter over another party in another matter. Even that criticism were to be levied, it should be easily dismissed as nonsense. I don't think that's the case here.
(3) I do not view derivatism as all too often resulting in inequity and results favoring entrenched power. My personal view is that Talossa is necessarily both derivatism and peculiarist and the two are not mutually exclusive. But that is not your question—when we speak of the law, we tend to speak of it in capital “L” terms. The Law says this; the Law requires that. But what if we replace capital L “Law” with justice? We get a more straightforward equation – law + equity = Justice. The sources of law are (1) the Organic Law; (2) Statutory Law; and (3) the common law. But when a strict application of the law results in a patent injustice, equity is available to offer a remedy. Loosely, in historic England, you had the Courts of King’s Bench (law) and the Courts of the Chancery (equity). A party went to one or the other depending on the redress sought. Overtime, many equitable principles became accepted to the point of becoming law onto itself. Hence why I like to distinguish between lower case l law and uppercase L Law. In any event, we still see this division in states like Delaware and partitally in New Jersey (literally the courts have merged but are separated by parts in the same building.) In New York, where every single courthouse has its own rules, our judiciary is called the “Unified Court System.” People often joke “there’s nothing unified about it.” But in reality, what is meant is the unification of equity and law. Equity today is pretty established, and equitable remedies are well-established. But the concept of equity remains. When a strict application results in something so patently unjust, the court can manufacture a unique outcome to prevent or mitigate that injustice. This is an awesome power and rarely used, as it should be.
None of what I just said requires any special legal training. One can read about the above by google. But I think it is important for our courts to consider that when the Organic Law is derived from and inspired from places like the United Kingdom, Australia, and the United States, and the judiciary is organized in a similar fashion, we are adopting the concept of law+equity=Justices. So I do not agree that a derivatist approach to Talossan law necessarily results in injustice, or an implication that pecularism would favor justice, but that the tools and concepts are there for either system to effectuate justice in Talossan corts if advocates and judges other to look, bother to take a moment to explain, and want to incorporate them into our jurisprudence. Please do not interpret my use of “both” negatively. Sometimes we do not need to bother to look at profound legal theories to decide a case (more often than not we don’t need to). But we should be prepared to. I think it would help the cort and Talossa’s development of law to remember that enthusiasts and “amateurs” were the ones developing these systems, these concepts, these legal theories. And in Talossa,this is possible. But we have to be straightforward and thorough about it. The Corts should be prepared to explain why it is adopting a particular approach in a matter. What about this case demands a different review? Until the courts do that, I do not think whether it they take a pecularist or derivatist fully informs the issue.
(I hope no one takes offense to this, and all of the questions asked so for were topical, and important, but I particularly loved this set.)
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Post by Viteu Marcianüs on Jan 12, 2020 13:24:09 GMT -6
Changes made on hoppered thread in New Witt include Puisne and Senior Justice.
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Post by Viteu Marcianüs on Jan 12, 2020 13:22:10 GMT -6
Fixed Puisne. And I actually had that on a note to make sure I got right.
I also observed "Senior Justice" but we've gotten so in the habit of Chief Justice for historical reasons. I have no preference, but agree that Senior signifies temporal rather than appointed with a special purpose. I have no reason to object to Senior Justice over Chief Justice.
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