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Post by Sevastáin Pinátsch on Jan 9, 2020 9:41:30 GMT -6
I'm unsure what to do -- should I suspend or continue? I can continue at a later time if that's what is desired -- it wouldn't impede me at all. I don't want to "talk over" Senator Pinatsch, so to speak. I think my questioning has been pretty useful. Assuming that we establish if the scheduled days beginning and ending on Talossan time applies, or if people have 48 hours from the point they begin, or whatever... I'm not against sharing some of my time after my first guest has spoken.
But I do wish for Sentator Marcianüs to receive his gap day and for the process to stay on schedule.
(My apologies also -- I've just now read the request to pause)
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 9, 2020 9:45:02 GMT -6
Right, so I attempted to intervene twice - one before S:r Marcianüs replied to S:r Pinatsch, and one before S:r Davinescu replied to S:r Pinatsch - but my replies were made repeatedly obsolete by further posts. This is not a problem but did cause additional unnecessary confusion. Let me attempt to set the record straight. On the topic of the time allotted:I apologise if this was not clear - the 16:00 UTC mark was made necessary by the fact the interview period began two days ago at 15:53 UTC, rounded up to 16 UTC. Since the first Senator - me - gets the floor for two whole days, the next Senator gets the floor at the same hour two days later, as described in Rules 9 to 11. So indeed S:r Davinescu had the floor for 17 more minutes from now, at which point Senator Pinatsch will have the floor for 48 hours. I apologise if the schedule that indicates the allocation of days caused confusion. It was only meant to give Senators an indication of the day in which they would receive the floor, and thus when to prepare and which deadlines to work with. On the topic of who gets the floor:On account of the very little time left, and in the interest of not over-regulating the process, I was about to let the Senator for Atatürk continue. This is now moot, as S:r Davinescu has concluded. Nonetheless, I would recommend that in the rest of the hearing the indications of the Chair are followed, out of courtesy towards the Committee. I now have the floor for two days. I yield the rest of my time - that is, until 16 UTC tomorrow, or in 25 hours from now On the topic of further questioning by S:r Davinescu:Should he have further questions, I suggest he either 1) Gets recognised as a guest by another Senator, which is entirely in order; 2) Passes his questions to another Senator to ask on his behalf; 3) If he only had follow-up, he could optionally use Rule 20, "to query the nominee for a written answer that will be placed on the record on the first possible opportunity".
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 9, 2020 9:47:07 GMT -6
With that said, the Senator for Atatürk now has the floor until 16 UTC / 10 TST of January 11. It may be convenient to inform the Committee that Saturday will be a gap day, and we will thereafter resume on Sunday.
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Post by Viteu Marcianüs on Jan 9, 2020 11:26:44 GMT -6
Mr. Chairperson ( Lüc da Schir) and Members of the Committee, Prior to this Committee coming to order, I transmitted the following information to the Chairperson: Saturdays are "husband days," and I do not work. I also take this opportunity to mention that I also leave my office every night around 8:30 p.m. and do not resume work until the following day. 1 To the extent I post to Witt during either of those periods, it is generally from my phone while watching TV or under a rare exception that I pass it under the radar. I am making it a point to provide responses from a proper computer to decrease typos, and I do not want to rush anything under the radar. In any event, the scheduled provided by the Chairperson does place the gap days on Saturdays. However, circumstance caused the start time not align with those days exactly. It is not my intention for any Senator to forfeit any part of the time or that of their Guest. Accordingly, and in line with the spirit of rules 19 and 22 of this Committee, that this Hearing be adjourned for 1 day and hours each week starting on Friday at 19:00 TST (Friday at 20:00 EST/Saturday at 01:00 UTC), and concluding on the following Sunday at 10:00 TST (11:00 EST/14:00 UTC). If this occurs when a Senator still holds the floor, their remaining time shall be tolled and shall resume immediately at the foregoing time. Presently, Senator Pinátsch holds the floor till Saturday, January 11th, at 10:00 TST (11:00 EST/16:00 UTC). An adjournment based on the proposed time frame would toll his period 14 hours. Upon resuming on Sunday, January 12th, at 10:00 TST (Sunday at 11:00 EST/14:00 UTC), he would hold the floor until midnight. I am not trying to complicate this, but I know that I will not be available to the extent that I have been in those time frames. Also, if a Senator must yield the floor at 10:00 p.m., which is after I stop working, I would still make a point to reasonably respond to any outstanding questions while immediately responding to the questions posed by the next Senator. I thank Senator Pinátsch for his patience and will proceed with responding to his questions while waiting for a decision from the Chairperson. Respectfully submitted, Viteu Marcianüs 1For quick background--my husband implemented this rule because I will work nonstop and burn myself out. The resultant work-life balance has been a boon to my productivity.
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 9, 2020 12:23:02 GMT -6
Just to clarify -- you are proposing that we adjourn every Friday at 19 TST and resume the following Sunday at 10 TST, with the current Senator's remaining time being frozen during the adjournment.
For the record, the current arrangement is that we adjourn on Saturday at 10 TST, when Senator Pinatsch terminates, and resume on Sunday at 10 TST with the next Senator, and that next week we will do the same.
Without objections from the rest of the Committee, I will grant this request.
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Post by Sevastáin Pinátsch on Jan 9, 2020 16:59:08 GMT -6
I understand and appreciate Sentator Marcianüs' position and am willing to accommodate. Healthy work-life balance is a must.
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Post by Viteu Marcianüs on Jan 10, 2020 19:57:57 GMT -6
Senator Pinatsch,
I appreciate your time and patience. The last two days for me have been filled with appearances in my personal life that either unexpectedly took all day (today), or involved a portion where I could not have personal devices such as my laptop (yesterday afternoon). In rush hour traffic, it can take almost two hours to get back to my office. I share this because there is an obvious delay from when you took the floor to my answer to your initial questions. That delay prejudices you and your Guest, and I fully support an application to extend your time. No part of me thought that my past conduct would not be discussed, and I have not attempted to gloss over the topic. You have asked me to go much deeper into myself as a human being, with a lot of introspection to your questions. I will strive to answer your questions in that context.
(1) I do not agree with your characterization that the amicus curiae that I filed in your matter was “unsolicited.” I stated the basis for how I interpreted the Cort’s invitation in the brief and respectfully refer to the Committee to the opening section of the brief for that basis. But it should not be overlooked that Chief Justice Tamoran, in the ESB matter, which is similar to yours, invited public commentary on the issues. Relying on the Chief Justice’s historical approach and his wording in the preliminary order, I felt it was appropriate. Also, amicus curiae are, in many instances, initiated by the interested party themselves, which is why many courts have explicit procedure for them, which may require a party making a motion or asking for leave to file the brief. In that regard, most amicus curiae, even when accepted, are unsolicited.
I will refrain from commenting on your subjective view of my prior conduct, but will say that I do not genuinely delight in first-hand provocation or second-hand schadenfreude. I delight in spirited, honest, and straightforward debate. I do not shy away from contentious circumstance. And, well, New Yorkers are generally misunderstood for being a bit brash.
Turning now to your question, I have the utmost respect for Justice Tamoran’s intellect and commitment to justice, both personally and as a Talossan jurist. I had the wonderful pleasure of sharing a pint with him when I visited England last March. He’s certainly a learned individual that can hold his own in a number of topics.
The Chief Justice is not undeserving of his position. He most certainly can render fair and just decisions. My issue with the Chief Justice stems from the lack of procedure and what I view as the cort overstepping boundaries. I do not think that the Cort should be in the business of arguing a case for a party. Now, that is not to say I am opposed to a more inquisitorial style system than an adversarial one, but we need clear procedure on that. In your case, Chief Justice Tamoran acted less as an impartial jurist and more as an advocate. To the best of my knowledge, your counsel did not appear nor did he put in any filings on your behalf regarding arguments on “what is a name” and whether the statute in question is Organic. Rather, the Cort did it on its own accord, and stated, that notwithstanding your confession, it was already inclined to dismiss the complaint. That dismissal was not because of a defect on the face of the charging instrument, but on the merits of the matter. Nobody raised legal sufficiency. But when you read the charging instrument, the preliminary order was an argument against it. The Government then responded to the Cort’s arguments. Then the Cort got the final say in its final order that dismissed the matter. You did not have to argue at all. This is evidence by your counsel’s filing that says, not verbatim, “what the cort said.” That’s a problem. The Cort proved your case; you did not.
In my estimation, that undermines the Rule of Law. Justice Tamoran also decided the ESB matter but did not raise these issues. So now we are left with inconsistent rulings. What is the main difference between you and ESB? Well, you’re popular and have done a lot of good things; at that time, ESB was not. The Rule of Law requires that the courts treat everyone the same and issue impartial decisions. The parties should know what to expect when they walk into the courthouse, and not get blindsided through procedural departures or the cort acting as an advocate. The essential element of the Rule of Law is that the people trust the court’s to act as they should. I think many people feel that the Cort, in your matter, did not act as it should. This erodes trust in the corts and obviates the Rule of Law.
As it relates to the Chief Justice, I firmly believes that he thinks he is engaging in justice. I do not think how he has approached matters render him undeserving or lacking of legal acumen. I only wish that he would realize that law and equity equal justice, and that justice is not a distinct, third category. Ultimately, I believe that the Cort abused its discretion. Does that make the Chief Justice undeserving or lacking of legal acumen? Absolutely not. Abuse of discretion is a basis for an appeal. A higher court would overturn the lower court’s decision. The lower court’s judge is not relieved. But hey, sometimes a single judge makes a mistake, and it takes those reviewing everything from an impartial perspective to reign it in. Judges are human, too, and make mistakes. If their legal conclusion is wrong, they are subject to being reversed. That does not mean they are in want of skill.
The recent events do not only concern your case, but the actions of other justices. Whether it’s failure to appear or decide matters, or creating matters out of thin air, or being removed, etc., recent events support a more thorough vetting process.
Some criticisms that I have made of the Cort in the past were shared by a significant part of the public—such as against former Justice Ben-Ard (the Ziu voted to remove him), and of the Cort in your case. It goes without saying that one can criticize and disagree with the Cort without being accused of questioning whether the justice deserves to have the seat or has the legal acumen—questioning the wisdom of a court’s decision is not a personal attack on the person who made the argument or the party that received the favorable determination.
(2) I must confess, I am slightly put off by the use of “in our lives” in your question. Since I have returned to Talossa, I have worked tirelessly to jumpstart the judiciary and advocate for individual rights. My focus has primarily been to share my passion of the law with Talossa and to see that it has the judiciary that it deserves. When asked my thoughts on something, I offer it. I am not afraid to get to the nuance of an argument or legal theory. When arguing before the Cort, I have attempted to incorporate as much authority on the matter and offer clear legal standards. Where Talossan law is silent, I do not limit my search to U.S.-based or U.K.-based standards, but try to incorporate as much of the broad spectrum of Anglo-American principles of law by looking at how the issue has developed internationally. This is very much in line with how courts throughout the world work (the US did this a lot prior to Justice Scalia, and unfortunately it is not the favored approach anymore). I try to provide my thoughts on what the law is or where it should go with a solid basis. If Talossa has not addressed an issue, how has the law in other countries developed? Should we let them lead or forge our own path? Should we establish a clear legal principle for everyone coming after to follow? These are the questions I try to employ here in Talossa.
No one deserves a powerful and prestigious role. We should not assign seats to the Uppermost Cort based on popularity. Talossa gets to decide if an individual has the qualities it requires to sit as a Justice, and those qualities may change over time. Certainly Talossa is well equipped to remove someone who is hurting the cort when it is necessary, and has in the past. I think my hard work, experience, and approach would benefit Talossa.
(3) I do not view Talossa as a role playing scenario. In fact, many of the arguments I have put forth regarding the judiciary originate in my concern that the courts, at times, function too informally and too much like this is a role playing scenario. While I realize now that Talossa does not need the rigid formality of other jurisdictions, it needs some procedure and activity in the judiciary.
I am earnestly trying to answer your question, but like some of the others, it assumes facts and characterizations. I offer no explanation as to my so-called “awful and erratic” behavior because I do not necessarily see it as such.
I cannot fully answer this question because I do not believe that I “act in dysfunctional ways that wouldn’t be tolerated in the real world” or that my behavior has been “awful and erratic” for the duration of my time in Talossa. I have stated before—I am pretty straight forward with my approach; I am candid and do not enjoy dressing things up in unnecessary drag. I appreciate when someone is straight forward with me and does not hide behind innuendo. I think the worst kind of insult is the one masked as a compliment, or the one in window dressing that, to the casual observer, is harmless, but is secretly a dog whistle at a certain audience.
Society claims that it hates lairs. But that’s nonsense. Society hates people that are brutally honest. It prefers non-confrontation. We tell lies every day, “Yes, those jeans look good on you!” “Great hair style.” “Of course I support gay rights.” And then our friend walks around looking like crap and, and Donald Trump becomes president. Do not confuse my point—I am not suggesting that avoiding a fight with your spouse over whether they look bad in an outfit is the same as supporting Trump; what I am saying is that we are so over-concerned with not hurting someone’s feelings through honesty that we deprive ourselves of the ability to have an honest conversation. A person who looks me in the eyes and says, “I have no problem with gays and lesbians” allows me to think that they will support my rights and candidates who support my rights. When “civil society” requires that keep their lack of support for equal marriage to themselves, I do not have a reasonable opportunity to engage them and cater my argument to them. Ironically, the person yelling homophobic slurs informs me of my enemy, and creates the false impression that only an extreme homophobe would dare take a stand against my right to exist in society. So now we have the insane homophobe sprouting horrible slurs, and the civil person who does not want to be equated with them. So they shut up. Suddenly, I am only arguing with the homophobe yelling slurs, when I should be engaging the person that shut up. But I’ve been deprived of that because we value civility more than honesty. At least with the homophobe, I know where I stand. With the other person, both of us have been deprived honest conversation.
I have never suggested that someone walk around and just be rude to people all day. And a lot of things do not translate into written text. A cheeky comment said in jest may come off as incredibly rude and offensive. And personalities do not always translate easily over the internet. I tend to post to Talossa how I speak in everyday life. My tone and circumstance reveal me in person. That is not clear in Talossa. Those who have met me in person can confirm this; and I think when I’ve appeared in the video or voice election debates, the language I use is pretty much the same as I am using now, but you see my facial expressions and hand gestures, and you hear my tone, and suddenly the language is no longer offensive.
I do not think it is fair that you get to characterize my behavior or say it would not be tolerated “in the real world.” Frankly, we live in different worlds. My real world prefers honesty over civility in my daily interactions. Of course that does not mean I am not guilty of telling little white lies to avoid unnecessary confrontation, but I have not been shy about stating what I feel.
Talossa, as this time, favors civility and insults masquerading as compliments than honesty. That’s unfortunate.
Now, how I approach the law and courts is different. It may sound banal but the law and my profession have taken a bit of a spiritual aspect of me. See, contrary to your characterization that I enjoy schadenfreude and am erratic, profane, trolling, peevish, and volatile, I have a bit of history in LGBT activism here in New York. I also work against many injustices I see in society (such as issues with classism, agism, racism, sexism, etc.). When I completed my undergraduate studies, I had no desire to go into law. But then I experienced some discrimination and filed a complaint in the state where I lived at the time. I found the research and the entire process enthralling. The regulatory agency sided with me. In that time I realized how much I wanted to go to law school, and I did.
Law school in the United States does not necessarily teach you legal theory. But it’s there if you go looking. As we read cases that taught us how the law developed (you don’t go to law school to learn the law), I became fascinated with how it is both a shield and a sword to address many of the causes in which I have advocated in the past. So I became obsessed with learning as much about its development as I could.
During law school, I got to work in a well-known court. That experience expanded my understanding of how some courts can be used. After law school, I had the privilege of working in an appellate court, and that distinctly taught me valuable lessons on the role of the court, what is appropriate behavior in the legal profession, and respect for the lower court. Topically, in the United States, appellate courts tend to accept the trial court’s evaluation of a witness. That is because the trial court observed the testimony firsthand, saw their mannerisms, etc. The appellate court just has words on a page. So you generally defer to the determination of the trial court. That was a powerful lesson to learn.
When I am speaking with another attorney, whether it’s on the phone or waiting for an appearance before the court, I am joking with them. We’re both speaking frankly about various things, cursing to some extent. And then we go into the courtroom, and our demeanor and language change. Why? Because we have to be mindful of what we say and how we act—everything gives something away. In my dealings in Talossa’s corts, I have not acted in a manner that is unbecoming of the Cort. That indicates how I view the importance of keeping the court’s appearance as a place of impartiality.
You know, one of my favorite facts about the United States Supreme Court is the relationship between Justice Ginsburg and the late Justice Scalia. They are polar opposites in their legal approach, and Justice Scalia was particularly known for his acerbic wit. Many of times his dissents were offensive. He and Ginsburg would go at it in their opinions and, without any other information, you could reasonably assume they would hate each other. Turns out, they were best friends, took trips together, were known to go to opera together, and enjoyed each other’s company. There’s actually a cheeky opera about their relationship. I love that story, and the idea that you can vehemently and strongly disagree with someone but still chill out together. I love the concept that you can be brutally honest with someone and still go on vacation or take in the opera together.
(4) Allow me to clarify my “solution.” I believe that a Justice must be impartial and believe that a Justice must avoid the air of impartiality. Our laws do not prevent a Justice from also sitting in the Cosa, but they do bar a Justice from being Prime Minister. So we recognize that, given Talossa’s needs, we need to take a slightly different approach but we should not be so blatant. I do not envision that I would disappear from Talossa and not participate in discussions. But I would retire from public life—and by public life I mean in the Ziu, or in a ministry, etc., and other political aspects as well. In that regard, a Justice should act in the same manner as the Crown, with the exception that a Justice should avoid commenting or pending legislation or how they would interpret the law because they do not know what facts will come up.
I will conclude with this, and perhaps I’m wrong, but your questions and characterizations strongly suggest that you in are an unyielding “No V” category. It is my impression that no matter how candid and honest I am, or what I reveal about myself, you would not support me. But I hope, if I be nominated and appointed, to change your mind eventually. While my answers and openness may be futile immediately, at the minimum, I think theyre good for Talossa. At least it will set the tone for future Uppermost Cort nominees.
I started writing this at around 6:00, and now it is 9:00 and I am going to get a text any minute telling me to leave work. If you post follow up questions, or whatever questions your Guest posts, I will respond according to schedule on Sunday. I defer to you and the Chair as to whether an extension for you is in order given my delay in responding.
Thank you Senator,
Viteu Marcianüs
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Post by Sevastáin Pinátsch on Jan 10, 2020 22:47:09 GMT -6
What is the main difference between you and ESB? Well, you’re popular and have done a lot of good things; at that time, ESB was not. Really? You're seriously comparing the creation and operation of 18 user accounts -- with eight used to vote in a General Election (all eight for the ZRT), and one of them acting as ZRT Member of the Cosa -- to the charges I was recently fully acquitted from?
Well... thanks for clarifying popularity and productivity as the "main difference".
I offer no explanation as to my so-called “awful and erratic” behavior because I do not necessarily see it as such. Again, thanks. I just wanted some idea of whether you were likely to continue as you have been, and you've made it clear.
Thank you Senator Marcianüs.
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 11, 2020 3:40:09 GMT -6
Seeing as Senator Marcianüs has answered the questions, we're now officially adjourned until tomorrow at 10 TST. S:r Börnatfiglheu will then have the floor until midnight TST.
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 12, 2020 11:42:42 GMT -6
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Post by E.S. Bornatfiglheu on Jan 12, 2020 13:32:03 GMT -6
Estimat Senator Marcianus, I thank you, first of all, for your kind attention. I also thank Senator Pinatsch for the time to allow the opposition to place questions to the candidate.
I would like to begin by asking about differences in judicial philosophy. You have been fairly outspoken recently about the court functioning as a civil court as opposed to a common law one. Given this, how can you speak to working with other members of the UC bench whom appear to have fundamentally different judicial philosophies than yourself?
I would like to also turn to the question of the nature of Talossa. As an entity that often needs to rely upon small-group dynamics moreso than larger nations, how does the law function in this context? In an earlier statement, you equate my crimes with the allegations which Sen. Pinátsch was recently acquitted of drawing a major difference in regards to overall popularity. I understand that this was with an interest in discussing the impartiality and equity of the law. Am I understanding this correctly?
However, Anatole France points out that: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." What are your views of the fact that all too often, derivationist reading of laws can, essentially, function not as a form of equity, but as a form of entrenched power?
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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 E.S. Bornatfiglheu on Jan 12, 2020 19:52:19 GMT -6
Thank you for your answers. I do have some followup, if you will indulge me.
In your Judicial Reform amendment, the Upper Court is to have appellate jurisdiction for controversies arising out of provincial judiciaries, such as they are, for example, the magistrate/mediator system established in the Sovereign Province of Benito. Can you speak to your views of the relationship between the two benches not simply as force of authority in terms of instant cases, but for the overall development of unique Talossan jurisprudence?
From what you discussed in your third answer, can you expand a bit on the differences, as your view it, between "Law" and "law?" I think I understand the distinction between the capitonyms here, but I would prefer it to be in your words as opposed to my assumptions.
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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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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 13, 2020 0:27:31 GMT -6
Senator Gödafrïeu Válcadác’h now has the floor for 48 hours. Incidentally, should E.S. Bornatfiglheu wish to post a brief statement in response to the nominee's answers, I shall deem it in order, on account of the reduced allocation of time he received.
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