Thursday, June 28, 2012

Understanding Today's Decision

One of the characteristics of a judicial opinion is, the footnotes.

If you were a judge, what would determine whether or not you agreed with a plaintiff, or with a defendent? I think the first impulse would be, "what are the facts?" What do you do, if you find that the facts alone don't support the allegations of either the plaintiff, or the defense?

Obamacare is a particularly egregious situation that we find ourselves. It is clearly beyond the limits of the Constitution for the federal government to tell us whether or not we need avail ourselves of certain commercial services. Like, insurance. But Constitutional Law isn't like running a business, where we can make quick adaptations to current conditions. What we want from constitutional law is a steady reliance upon those cases that have come up, and rely upon the decisions of those cases, as articulated by the Majority and Minority opinions those cases have produced.

This post isn't going to digress into the correctness of the decision released today by America's top court. Instead, I'm going to give you a link to another case, in ways, just as important as today's case, dealing with the First Amendment, and an issue referred to as Fair Use.

I like this decision. Having spent time crawling through decisions as a "wannabee" lawyer, I want to point out that this decision has a very clear structure, in terms of referring to the terms of the issue at hand, and the point-by-point method that the writer has, in refuting the claims of the plaintiff. It is simple, it is direct, and most of all, in my opinion, a wonderful teaching tool in terms of how good application of previously decided law (stare decisis) can be applied to create a forceful and vigourous defense for the defendent.

And, it's obvious, the judge enjoyed writing this decision.

I give you, Brownmark Films, LLC., v. Comedy Partners, et al. (.pdf)


MAX Redline said...

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Ten Mile Island said...



MAX Redline said...

Heh! Not quite...

The page cannot be found

The page you are looking for might have been removed, had its name changed, or is temporarily unavailable.
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Ten Mile Island said...

link worked for me...

you can find the link here:


ZZMike said...

I found an article from 2008, in which Obama, in the campaign against Hillary Clinton, said that he was definitely against "forcing the uninsured to buy health insurance".

Obama Opposed Individual Mandate

In all fairness, we must assume that his position has evolved since then.