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Old 02-14-2006, 02:02 PM   #16
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Many SCOTUS decisions are based on the application of balancing tests. The mixing of facts and law in light of a balancing test will result in differing conclusions.
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Old 02-14-2006, 02:03 PM   #17
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Quote:
Originally posted by AliEnvy


If the result matches the desired outcome of the majority of the people represented, that IS liberty, no?



If interpreting the law relies in part on precedent, how do you create precedent if not for public opinion?
I'd say that for the first question, it depends on the scale on which you define liberty---for an individual, or for the masses as a whole. That's a tough question & could probably spark quite a lengthy & thoughtful debate!

Also, technically, a precedent is merely a previous court decision, the principles of which can be applied to a subsequent case.
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Old 02-14-2006, 02:08 PM   #18
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Quote:
Originally posted by AliEnvy
If the result matches the desired outcome of the majority of the people represented, that IS liberty, no?
No, a core aspect of liberty is the consistency in which law is applied. If law is applied in an inconsistent fashion, there is a deprivation of liberty.



Quote:
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If interpreting the law relies in part on precedent, how do you create precedent if not for public opinion?
Precendent refers to prior legal decisions utilizing same or similar fact patterns. Public opinion plays no role.
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Old 02-14-2006, 02:11 PM   #19
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Quote:
Originally posted by nbcrusader
Many SCOTUS decisions are based on the application of balancing tests. The mixing of facts and law in light of a balancing test will result in differing conclusions.
That's often where the personal side comes into play. Factors often used in a balancing test including determining the importance of a fact, the relevance of something, the potential impact of a fact/decision/circumstance, etc. As objective as such intellectual questions may be designed to be, there still is an amount of subjectivity that remains.
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Old 02-14-2006, 02:11 PM   #20
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Quote:
Originally posted by Utoo

I'd say that for the first question, it depends on the scale on which you define liberty---for an individual, or for the masses as a whole.
I was speaking about whoever is bound by the law interpreted. nbc may have been speaking to personal liberty?

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Also, technically, a precedent is merely a previous court decision, the principles of which can be applied to a subsequent case.
Exactly, so what do you think influences court decisions that are precedent-setting?
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Old 02-14-2006, 02:12 PM   #21
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No, a core aspect of liberty is the consistency in which law is applied. If law is applied in an inconsistent fashion, there is a deprivation of liberty.
Consistency is more related to justice than liberty...but I'll let you go on that.
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Old 02-14-2006, 02:13 PM   #22
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Quote:
Originally posted by Utoo


That's often where the personal side comes into play. Factors often used in a balancing test including determining the importance of a fact, the relevance of something, the potential impact of a fact/decision/circumstance, etc. As objective as such intellectual questions may be designed to be, there still is an amount of subjectivity that remains.
Another factor to consider: decisions are rendered after pursuasive arguments are presented before the Court.
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Old 02-14-2006, 02:14 PM   #23
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Quote:
Originally posted by AliEnvy

Exactly, so what do you think influences court decisions that are precedent-setting?
Ideally, it's yet more preceding precedents. In reality....well, that's what's up in the air in this thread.
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Old 02-14-2006, 02:16 PM   #24
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i wonder if Scalia's understanding of Constitution would ever lead him to an outcome with which he disagreed ...
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Old 02-14-2006, 02:18 PM   #25
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Originally posted by nbcrusader


Another factor to consider: decisions are rendered after pursuasive arguments are presented before the Court.
More "living organism" brought into the application of the Constitution....
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Old 02-14-2006, 02:21 PM   #26
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it strikes me that originalism is as much judicial activism as anything else -- screw precedent, you know?
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Old 02-14-2006, 03:16 PM   #27
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Quote:
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More "living organism" brought into the application of the Constitution....
Funny.

More explaination for differing outcomes one a given set of facts.
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Old 02-14-2006, 03:20 PM   #28
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Originally posted by Irvine511


i wonder if Scalia's understanding of Constitution would ever lead him to an outcome with which he disagreed ...
It would almost be a certainty. Many cases deal with the ability of a branch of government to pass a law without addressing the rationality of the specific law.
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Old 02-14-2006, 03:22 PM   #29
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Quote:
Originally posted by Irvine511
it strikes me that originalism is as much judicial activism as anything else -- screw precedent, you know?
I'd suggest originalism has a stronger tie to precedent than a "living organism" theory as the later suggests open license to change despite precedent.
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Old 02-14-2006, 03:27 PM   #30
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Quote:
Originally posted by nbcrusader


It would almost be a certainty. Many cases deal with the ability of a branch of government to pass a law without addressing the rationality of the specific law.

well, as pertains to another thread, theoretically ...
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