I'd like to return to this topic for a moment. Over the past months,
I've been reflecting on my suggestion regarding the appellate process
and power. The more I study, the more I'm convinced that the /proper/
delegation of the appellate power should in fact be conditional upon
unanimity.

I'd like to return to this topic for a moment. Over the past months,
I've been reflecting on my suggestion regarding the appellate process
and power. The more I study, the more I'm convinced that the /proper/
delegation of the appellate power should in fact be conditional upon
unanimity.

Without it, there is NO firm foundation, but merely a foundation that is
subject to the whim of the of the day.

Has anyone else seen the light?

On Sat, 07 Nov 2009 10:24:23 -0800, Peter Franks wrote:

I'd like to return to this topic for a moment. Over the past months,
I've been reflecting on my suggestion regarding the appellate process
and power. The more I study, the more I'm convinced that the /proper/
delegation of the appellate power should in fact be conditional upon
unanimity.

Without it, there is NO firm foundation, but merely a foundation that is
subject to the whim of the of the day.

Has anyone else seen the light?

Here is a "whim of the day":
http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006

As far as the appellate process, are you addressing a court considering
only the legal process of a lower court? Trying the trial, as it were?

ZerkonXXXX wrote:
On Sat, 07 Nov 2009 10:24:23 -0800, Peter Franks wrote:

I'd like to return to this topic for a moment.  Over the past months,
I've been reflecting on my suggestion regarding the appellate process
and power.  The more I study, the more I'm convinced that the /proper/
delegation of the appellate power should in fact be conditional upon
unanimity.

Without it, there is NO firm foundation, but merely a foundation that is
subject to the whim of the of the day.

Has anyone else seen the light?

Here is a "whim of the day":
http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006

I saw this mentioned elsewhere; I'll give it a read.

As far as the appellate process, are you addressing a court considering
only the legal process of a lower court? Trying the trial, as it were?

Correct.

Another way of thinking of it is 'legitimizing stare decisis'.- Hide quoted text -

- Show quoted text -

As far as the appellate process, are you addressing a court considering
only the legal process of a lower court? Trying the trial, as it were?

Correct.

Another way of thinking of it is 'legitimizing stare decisis'.

cpt banjo wrote:

And if you don't get unanimity in the appellate court, what happens?
The decision of the trial court stands.  And if the decision of the
trial court is based upon an  interpretation of the law that differs
from another trial court, what do you have?  Non-uniform law.

No, you have defective legislation.

Similarly, if the decisions of the Supreme Court must be unanimous and
you don't get unanimity, what can happen?  A unanimous decision of the
Second Circuit can conflict with a unanimous decision of the Tenth
Circuit, again resulting in non-uniform law.

You already have that regardless of unanimity.

On Mon, 09 Nov 2009 15:46:12 -0800, Peter Franks wrote:

As far as the appellate process, are you addressing a court considering
only the legal process of a lower court? Trying the trial, as it were?
Correct.

Another way of thinking of it is 'legitimizing stare decisis'.

Ok, so your position is that unanimity would establish this firm
foundation.

Question: Is legal reasoning, or any process of reasoning, more solid
with dissent or without it?

Maybe this is just a personal view but I can not see benefit in having
any opinion, legal or otherwise, stand unchallenged (other than my own,
of course).

I bring in John Stewart Mills on his essay "On Liberty", or my memory of
it. He makes an excellent case for reasoned dissent, namely a 'correct'
or 'right' opinion is much stronger if challenged. Dissent hardens.

The foundation you seem to want is law void of all uncertainly. Do you
really want courts operating (even more) with this attitude?

On Nov 9, 5:46 pm, Peter Franks <n... at (no spam) none.com> wrote:
ZerkonXXXX wrote:
On Sat, 07 Nov 2009 10:24:23 -0800, Peter Franks wrote:
I'd like to return to this topic for a moment. Over the past months,
I've been reflecting on my suggestion regarding the appellate process
and power. The more I study, the more I'm convinced that the /proper/
delegation of the appellate power should in fact be conditional upon
unanimity.
Without it, there is NO firm foundation, but merely a foundation that is
subject to the whim of the of the day.
Has anyone else seen the light?
Here is a "whim of the day":
http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006
I saw this mentioned elsewhere; I'll give it a read.

As far as the appellate process, are you addressing a court considering
only the legal process of a lower court? Trying the trial, as it were?
Correct.

Another way of thinking of it is 'legitimizing stare decisis'.- Hide quoted text -

- Show quoted text -

And if you don't get unanimity in the appellate court, what happens?
The decision of the trial court stands. And if the decision of the
trial court is based upon an interpretation of the law that differs
from another trial court, what do you have? Non-uniform law.

Similarly, if the decisions of the Supreme Court must be unanimous and
you don't get unanimity, what can happen? A unanimous decision of the
Second Circuit can conflict with a unanimous decision of the Tenth
Circuit, again resulting in non-uniform law.

Your ridiculous system ...

has resulted in the exact opposite of what you
claim to want.

On Nov 10, 2:41 pm, Peter Franks <n... at (no spam) none.com> wrote:
cpt banjo wrote:

And if you don't get unanimity in the appellate court, what happens?
The decision of the trial court stands. And if the decision of the
trial court is based upon an interpretation of the law that differs
from another trial court, what do you have? Non-uniform law.
No, you have defective legislation.

It may not be legislation. It may be a common law rule. It may be
the Constitution. Do you really think that the words "freedom of
speech" are so precise that there will never be any disagreement as to
their applicability in any conceivable set of facts?

Do you really
want to have to amend the Constitution any time there's a conflict in
the appellate courts regarding a constitutional issue simply because
the SCOTUS vote was 8-1?

Similarly, if the decisions of the Supreme Court must be unanimous and
you don't get unanimity, what can happen? A unanimous decision of the
Second Circuit can conflict with a unanimous decision of the Tenth
Circuit, again resulting in non-uniform law.
You already have that regardless of unanimity.

Sometimes you do, but it's rare. This situation is usually confined
to issues of statutory construction; I can't think of a current split
in the circuits involving a constitutional issue. If there is one,
however, SCOTUS can resolve the conflict by hearing an appeal, and its
decision will establish uniform law.

What you don't seem to realize is that requiring unanimity in
appellate decisions will result in far less uniformity than under the
current system.

cpt banjo wrote:

Sometimes you do, but it's rare.  This situation is usually confined
to issues of statutory construction; I can't think of a current split
in the circuits involving a constitutional issue.  If there is one,
however, SCOTUS can resolve the conflict by hearing an appeal, and its
decision will establish uniform law.

Only temporarily, and therefore, not uniform wrt temporal application.

What you don't seem to realize is that requiring unanimity in
appellate decisions will result in far less uniformity than under the
current system.

Could you give a concrete example of how there would be less uniformity?

The judiciary cannot make nor change law.

What you don't seem to realize is that requiring unanimity in
appellate decisions will result in far less uniformity than under the
current system.
Could you give a concrete example of how there would be less uniformity?

I already have:  If an intermediate appellate court votes 14-1 on a
particular issue, then each trial court below the appellate court can
determine its own rule of law with respect to the issue.  Similarly,
if the Supreme Court votes 8-1 on an issue, then each intermediate
appellate court can fashion its own rule.

I saw that the first time you wrote it, but it isn't isn't a concrete
example.

On Nov 10, 6:25 pm, Peter Franks <n... at (no spam) none.com> wrote:
cpt banjo wrote:

Sometimes you do, but it's rare. This situation is usually confined
to issues of statutory construction; I can't think of a current split
in the circuits involving a constitutional issue. If there is one,
however, SCOTUS can resolve the conflict by hearing an appeal, and its
decision will establish uniform law.
Only temporarily, and therefore, not uniform wrt temporal application.

But this same objection can be made to a unanimous appellate decision
-- the judges might change their minds later on and overturn the
previous decision. As a matter of fact, the same objection can be
made to legislation -- the legislature might change its mind and
repeal or modify its prior statutes.

(Incidentally, I don't think you realize how incredibly rare it is for
the Supreme Court or an intermediate appellate court to overturn its
own decisions, regardless of whether the prior decision was 5-4 or
9-0.)

It's becoming clear that it's not the lack of uniformity of the law
that you don't like -- it's who has the power to change the law. For
some reason you don't want judges to be able to do this unless as a
result of a unanimous decision. Why you would think a 8-1 Supreme
Court opinion is less legitimate than a 218-217 House vote couopled
with a 51-49 Senate vote is a mystery.

What you don't seem to realize is that requiring unanimity in
appellate decisions will result in far less uniformity than under the
current system.
Could you give a concrete example of how there would be less uniformity?

I already have: If an intermediate appellate court votes 14-1 on a
particular issue, then each trial court below the appellate court can
determine its own rule of law with respect to the issue. Similarly,
if the Supreme Court votes 8-1 on an issue, then each intermediate
appellate court can fashion its own rule.

On Nov 12, 3:17 pm, Peter Franks <n... at (no spam) none.com> wrote:

The judiciary cannot make nor change law.

Nonsense. Courts have been making law for over 600 years.

The Supreme
Court's interpretation of a statute or the Constitution IS the law
until changed. Was Plessy v. Ferguson the law until 1954? Yes. Was
it the law after the Brown decision? No.

It's already been established in previous threads that you just don't
like the notion of judicial review. Tough. It's been the law for
over 200 years, and it's not going away.

What you don't seem to realize is that requiring unanimity in
appellate decisions will result in far less uniformity than under the
current system.
Could you give a concrete example of how there would be less uniformity?
I already have: If an intermediate appellate court votes 14-1 on a
particular issue, then each trial court below the appellate court can
determine its own rule of law with respect to the issue. Similarly,
if the Supreme Court votes 8-1 on an issue, then each intermediate
appellate court can fashion its own rule.
I saw that the first time you wrote it, but it isn't isn't a concrete
example.

Well, it's easier to give an example of conflicts among the federal
circuit courts. Last June, the Supreme Court in a 5-4 decision, held
that punitive damages are available in certain actions brought by
seamen against their employers. Had your unanimity rule been in
effect, there would have been one rule of law applicable in the 11th
Circuit and another in the 5th and 9th Circuits.

Court's interpretation of a statute or the Constitution IS the law
until changed. Was Plessy v. Ferguson the law until 1954? Yes. Was
it the law after the Brown decision? No.

And therein lies the rub! Laws subject to the whim of a few. Contrary
to the designs of our government, contrary to the Constitution, contrary
to common sense, ...

It's already been established in previous threads that you just don't
like the notion of judicial review. Tough. It's been the law for
over 200 years, and it's not going away.

You mean it has been the fabrication for over 200 years. There is no
legal basis for it. Created out of whole cloth. Do you dispute those
facts?

Let me ask you this: in this 5-4 case, what's wrong with the minority?
Are they idiots? Why wasn't there unanimity in the decision? Is the
law /that/ defective that those that are charged at the highest level
are incapable of determining the proper applicability? THAT scares me.