Precedent: it's a word First Year law students hear often. You may hear Second and Third year students say, "It's bad precedent," or a professor may say, "Will this decision make good precedent?"*
PRECEDENT: WHAT IS IT AND WHAT IS IT GOOD FOR?
When a court looks to precedent, it looks to see how other courts have decided the issue that is presently before them. If other courts have consistently held that certain contracts must be in crayon, then a precedent has been set and the court has to do little work in rendering a decision. They merely have to write, affirmed. It's judicial time saving at its finest.
Ideally, for precedent to be at its strongest, your case should be on "all fours" with the precedent case. This is not as fun as it sounds, even in mixed company. It simply means that the facts of your case are identical to the facts of the precedent case.
Precedent-setting cases generally stand for a particular rule of law. Often times, there is more going on in these cases than a mere legal dispute. The diligent student will study the more important precedents and know when to use them. The less diligent student will have a social life. Here are some of the more well-known precedents you'll need to know.
MARBURY V MADISON (1803)
Facts: Then Secretary of State James Madison refused to deliver certain commissions to their intended recipients because it was very late at night and he had a big day ahead of him, thereby denying the intended recipients their rightful patronage jobs and government pensions.
What it stands for: The Supreme Court can declare an act of Congress unconstitutional.
What it really stands for: John Marshall established the Judiciary as a co-equal branch of government and established judicial review over congressional acts while simultaneously annoying his cousin, President Jefferson.
UNITED STATES V BURR (1807)
Facts: The former Vice-President was arrested for treason for allegedly planning to separate the western states from the eastern states and then reattaching them with epoxy.
What it stands for: Treason requires two witnesses, an overt act and something to betray.
What it really stands for: Killing a former Treasury Secretary is one thing, pissing off Jefferson twice in one decade is a bad move.
PACKARD V PACKARD (1864)
Facts: Under Illinois Law a man could institutionalize his wife "without the evidence of insanity required in other cases."
What it stands for: No person can be restrained against their will absent some minimal level of evidence of incompetence. Not even a woman.**
What it really stands for: Officially ended "The Good Old Days" for men everywhere.
SCHENCK V US (1919)
Facts: The Socialist Party circulated pamphlets critical of U.S. conscription in violation of the 1917 Espionage Act.
What it stands for: You can't falsely shout fire in a crowded theater.
What it really stands for: Your right to yell theater in a crowded firehouse is absolute, absent a compelling state interest.
ROE V WADE (1973)
Facts: Roe*** challenged a Texas statute that criminalized abortion.
What it stands for: A woman's right to her body has some level of Constitutional protection. The viability of the fetus is also a factor as pointed out by Justice White: "A fetus is a fetus until it gets out of medical school."
What it really stands for: The President can deploy troops to any womb that poses a security threat to the United States but if the occupation is to exceed 90 days he must seek congressional approval.
CALIFORNIA V PETERSON (2005)
Facts: A husband is found guilty of murdering his wife despite the lack of any direct evidence linking him to the murder.
What it stands for: A criminal conviction may be upheld when based soley on circumstantial evidence.
What it really stands for: First time a California court finds a defendant guilty of murder.
Other precedent-setting cases the new law student should know about:
Spy v. Spy (also involves the 1917 Espionage Act);
Kramer v. Kramer (Stars Dustin Hoffman);
Ali v. Foreman
Joe v. The Volcano
* Precedent comes from the Latin, meaning "What he said."
** A woman is a person under Illinois law
***Roe was an alias. Roe's real name was Doe.
Sunday, August 28, 2005
Friday, August 12, 2005
AN INSIDE LOOK AT THE SUPREME COURT
By Stockton
Most insider books and interviews are written by powerful people and give us an inside look at the world of the powerful. This holds true for the Supreme Court, where we are fed a constant diet of tell-all books, usually penned by clerks to the judges.
Fortunately, we recently unearthed an interview of Samuel "Chum" Hubbs, the Supreme Court Barber from 1899 to 1966. Mr. Hubbs comes across as a charming, loquacious man and proved to be a wealth of information. The interview was conducted in 1969, a few years after he resigned from his position. Mr. Hubbs died in 1978. The following are excerpts from that interview.
"Sure, I cut Holmes' hair. I cut them all, Holmes, Brandeis, Cardoza. Came from a long line of barbers. Dad was a barber, his father was and his grandfather was. My brother too. Old Nat cut hair for the Massachusetts Supreme Court. Got appointed to the 1st Circuit even, back in '31 or '32. Then the bottom fell out of the Barbisol market and he lost everything.
"McReynolds....sure, I cut his hair. Strange man, McReynolds. He had gone almost entirely white when he came to the court but still had some black strands. He insisted that I always separate the black hairs and white hairs. 'Make them equal lengths, Chum,' he'd say. "But make sure they're separated.' I remember McReynolds always got his hair cut on Sunday. Brandeis and Cardoza always came in on Saturday. That made McReynolds crazy. Said I should close up shop early on Saturdays and make them two go somewhere else.
"Brandeis was a good customer. Exacting, but good. Always came in with charts, studies and diagrams showing me why his hair grew like it did. That it was the environment he grew up in, that if he had grown up in different circumstances, his hair might be different. That's why Brandeis' hair style seems to change. I had to change it everytime there was a new study or poll.
Yeah, I was there through the War Years. Those were tough times for everyone and the court was no different. Black came in one day, sometime in '42 or late '43. He wanted me to cut certain hairs from his head and put them aside, in a special container. "Just until this is over, Chum," he said. "We can replace them after it's over." He asked me to keep an eye on those hairs until hostilities ceased. I shook my head. "But Judge, these are your hairs, grew right here out of your scalp." He smiled at me. "We're at war, Chum and good grooming habits aren't a suicide pact." That last part he stole from Justice Jackson.
"You heard of the Court Packing plan? I was instrumental in killing that idea. I was in my shop one day and who walks in? Franklin Delano Roosevelt himself. "Chum," he says, "I have an idea. You think you could handle four more appointments a week?" I just shook my head in disbelief. My appointment book was already filled up for an entire year. There was no way I could handle anymore. That's how the court packing plan got killed.
"My favorite customer? Justice Holmes. He was a charming man and a good tipper. We got to be pretty friendly too. Everytime Ollie walked in I'd shout, "Fire, fire!" He'd pretend to panic and we'd have a good laugh. Douglas was a favorite too. Willy O. would walk in and say, "I need a hair cut, Chum." I always replied, "Just one?" That was our little joke. Then he'd say, "No, cut the whole penumbra." Penumbra, never did understand that one.
"Regrets? Just one. I would have liked to get my hands on O'Connor or Ginsburgh. I think ol' Chum here could have helped them quite a bit."
Most insider books and interviews are written by powerful people and give us an inside look at the world of the powerful. This holds true for the Supreme Court, where we are fed a constant diet of tell-all books, usually penned by clerks to the judges.
Fortunately, we recently unearthed an interview of Samuel "Chum" Hubbs, the Supreme Court Barber from 1899 to 1966. Mr. Hubbs comes across as a charming, loquacious man and proved to be a wealth of information. The interview was conducted in 1969, a few years after he resigned from his position. Mr. Hubbs died in 1978. The following are excerpts from that interview.
"Sure, I cut Holmes' hair. I cut them all, Holmes, Brandeis, Cardoza. Came from a long line of barbers. Dad was a barber, his father was and his grandfather was. My brother too. Old Nat cut hair for the Massachusetts Supreme Court. Got appointed to the 1st Circuit even, back in '31 or '32. Then the bottom fell out of the Barbisol market and he lost everything.
"McReynolds....sure, I cut his hair. Strange man, McReynolds. He had gone almost entirely white when he came to the court but still had some black strands. He insisted that I always separate the black hairs and white hairs. 'Make them equal lengths, Chum,' he'd say. "But make sure they're separated.' I remember McReynolds always got his hair cut on Sunday. Brandeis and Cardoza always came in on Saturday. That made McReynolds crazy. Said I should close up shop early on Saturdays and make them two go somewhere else.
"Brandeis was a good customer. Exacting, but good. Always came in with charts, studies and diagrams showing me why his hair grew like it did. That it was the environment he grew up in, that if he had grown up in different circumstances, his hair might be different. That's why Brandeis' hair style seems to change. I had to change it everytime there was a new study or poll.
Yeah, I was there through the War Years. Those were tough times for everyone and the court was no different. Black came in one day, sometime in '42 or late '43. He wanted me to cut certain hairs from his head and put them aside, in a special container. "Just until this is over, Chum," he said. "We can replace them after it's over." He asked me to keep an eye on those hairs until hostilities ceased. I shook my head. "But Judge, these are your hairs, grew right here out of your scalp." He smiled at me. "We're at war, Chum and good grooming habits aren't a suicide pact." That last part he stole from Justice Jackson.
"You heard of the Court Packing plan? I was instrumental in killing that idea. I was in my shop one day and who walks in? Franklin Delano Roosevelt himself. "Chum," he says, "I have an idea. You think you could handle four more appointments a week?" I just shook my head in disbelief. My appointment book was already filled up for an entire year. There was no way I could handle anymore. That's how the court packing plan got killed.
"My favorite customer? Justice Holmes. He was a charming man and a good tipper. We got to be pretty friendly too. Everytime Ollie walked in I'd shout, "Fire, fire!" He'd pretend to panic and we'd have a good laugh. Douglas was a favorite too. Willy O. would walk in and say, "I need a hair cut, Chum." I always replied, "Just one?" That was our little joke. Then he'd say, "No, cut the whole penumbra." Penumbra, never did understand that one.
"Regrets? Just one. I would have liked to get my hands on O'Connor or Ginsburgh. I think ol' Chum here could have helped them quite a bit."
Monday, August 01, 2005
YOUR DUTY TO THE COMMUNITY
By Stockton
Many professionals, including lawyers, are active in the community. A surprising number of firms are proud of their community involvement and urge their new associates to "give something back to the community." So, don't be surprised if during the first few weeks of your employment, you receive a knock on your door. It will be a partner and that partner will encourage you to become involved in some community related, charitable activity.
You will have one of two responses: "Give something back to the community? Sure! Great! Since the community is paying my student loans, since the community just spent three years in school, since the community is working this lousy, 12 hour a day, slave-wage job, I'll give something to the community. How about the finger?" Make sure that this response comes from your "inner" voice and your "inner" voice only.
Instead, muster all your energy into a feigned look of interest and say, "Great, I have two or three free hours every week. I'd love to help."
There is a wide variety of community groups, activities and projects you can participate in to keep your employers happy. Here are just a few.
Battered Women
Before you jump into this, make sure you know what you're dealing with. Despite the name, this has nothing to do with smearing pancake mix onto females. In this context battered means violence, not a pasty mixture used to make pancakes or fish fries. Battered women's advocacy groups can always use free legal counseling on a wide variety of issues. It is a worthy endeavor but proceed with caution when selecting a group. If you decide to do pro bono work for a battered women's group, make sure it's an anti-battered women's group. I learned that one the hard way.
Youth Groups
A partner at my firm was able to combine his love of basketball and his desire to work with inner-city street gangs. When he was finished, he had turned four inner-city youth basketball teams into street gangs. Quite a success rate. The street gangs are now 7-0 this season and are heading to the state finals.
Indigent Teens
Another partner spends his spare time working with indigent teens. He says many of those teens just need someone who will listen. He is very dedicated to this work. On weekend nights, when I'm out late, I often see his car parked in a disreputable neighborhood. He must be well-liked though, because I usually see young females leaning in his passenger window listening to his advice. Once, I even saw him give someone some money and a ride. He has a big heart and I still don't understand why he's been divorced four times.
Indigent Lawyers
It's a little known fact but some lawyers can fall on hard times. There's nothing more worthwhile than to aid the needy within your own profession. It's a heart-wrenching experience to see a lawyer that has lost his second Mercedes or the summer home on Lake Watchamacallit in Vermont. Others become overwhelmed by their success, suffering from anxiety when they have to choose a particular tax shelter to protect their money from the government. Alcohol is another problem area for some attorneys. Fulfilling your community service might be as simple as stopping at a liquor store every morning and picking up a few things for a fellow attorney whose family will not allow liquor in the house.
Catholic Defense League
For the athletes among you, this is a worthy endeavor. The CDL teaches the art of self-defense to Catholic Alter Boys. It also raises money to purchase and supply alter boys with pepper spray and whistles.
Don't forget, your charitable activities can begin in law school. However, you must never question the charitable event after the decision to host that event has been made. You may be labeled as insensitive. During my second year of school, our class hosted a "Day Out" for the homeless. This event included a cookout in a local park. I made the mistake of pointing out that the homeless are always out of doors and perhaps we should host a "Day In" for the homeless. The event planners were not amused.
Now go do some good!
Many professionals, including lawyers, are active in the community. A surprising number of firms are proud of their community involvement and urge their new associates to "give something back to the community." So, don't be surprised if during the first few weeks of your employment, you receive a knock on your door. It will be a partner and that partner will encourage you to become involved in some community related, charitable activity.
You will have one of two responses: "Give something back to the community? Sure! Great! Since the community is paying my student loans, since the community just spent three years in school, since the community is working this lousy, 12 hour a day, slave-wage job, I'll give something to the community. How about the finger?" Make sure that this response comes from your "inner" voice and your "inner" voice only.
Instead, muster all your energy into a feigned look of interest and say, "Great, I have two or three free hours every week. I'd love to help."
There is a wide variety of community groups, activities and projects you can participate in to keep your employers happy. Here are just a few.
Battered Women
Before you jump into this, make sure you know what you're dealing with. Despite the name, this has nothing to do with smearing pancake mix onto females. In this context battered means violence, not a pasty mixture used to make pancakes or fish fries. Battered women's advocacy groups can always use free legal counseling on a wide variety of issues. It is a worthy endeavor but proceed with caution when selecting a group. If you decide to do pro bono work for a battered women's group, make sure it's an anti-battered women's group. I learned that one the hard way.
Youth Groups
A partner at my firm was able to combine his love of basketball and his desire to work with inner-city street gangs. When he was finished, he had turned four inner-city youth basketball teams into street gangs. Quite a success rate. The street gangs are now 7-0 this season and are heading to the state finals.
Indigent Teens
Another partner spends his spare time working with indigent teens. He says many of those teens just need someone who will listen. He is very dedicated to this work. On weekend nights, when I'm out late, I often see his car parked in a disreputable neighborhood. He must be well-liked though, because I usually see young females leaning in his passenger window listening to his advice. Once, I even saw him give someone some money and a ride. He has a big heart and I still don't understand why he's been divorced four times.
Indigent Lawyers
It's a little known fact but some lawyers can fall on hard times. There's nothing more worthwhile than to aid the needy within your own profession. It's a heart-wrenching experience to see a lawyer that has lost his second Mercedes or the summer home on Lake Watchamacallit in Vermont. Others become overwhelmed by their success, suffering from anxiety when they have to choose a particular tax shelter to protect their money from the government. Alcohol is another problem area for some attorneys. Fulfilling your community service might be as simple as stopping at a liquor store every morning and picking up a few things for a fellow attorney whose family will not allow liquor in the house.
Catholic Defense League
For the athletes among you, this is a worthy endeavor. The CDL teaches the art of self-defense to Catholic Alter Boys. It also raises money to purchase and supply alter boys with pepper spray and whistles.
Don't forget, your charitable activities can begin in law school. However, you must never question the charitable event after the decision to host that event has been made. You may be labeled as insensitive. During my second year of school, our class hosted a "Day Out" for the homeless. This event included a cookout in a local park. I made the mistake of pointing out that the homeless are always out of doors and perhaps we should host a "Day In" for the homeless. The event planners were not amused.
Now go do some good!
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