John Doe vs. John Doe: Virginia Court's Decision in Online 'John Doe' Case Hailed by Free-Speech Advocates
-----Original Message----- From: David Farber [mailto:dave@farber.net] Sent: Saturday, March 17, 2001 4:18 AM To: ip-sub-1@majordomo.pobox.com Subject: IP: Virginia Court's Decision in Online 'John Doe' Case Hailed by Free-Speech Advocates CYBER LAW JOURNAL Virginia Court's Decision in Online 'John Doe' Case Hailed by Free-Speech Advocates By CARL KAPLAN Cyber Law Journal In what was apparently the first Internet defamation case to involve both an anonymous plaintiff and anonymous defendants, the Supreme Court of Virginia refused to grant an unidentified company access to America Online's confidential subscriber information unless the firm agreed to reveal its identity. The plaintiff in the case, named in court documents only as "Anonymous Publicly Traded Company," dropped its efforts to subpoena AOL after agreeing on Wednesday to the dismissal of a related case in Indiana. Douglas M. Palais, the lawyer for the plaintiff company, declined to explain why his client had dropped its case. While the litigation is no longer pending, the ruling handed down in Virginia could set a precedent for similar lawsuits across the country. In its decision, the Virginia court said that an anonymous plaintiff could be given subpoena power only if it would suffer exceptional harm, such as a social stigma or extraordinary economic retaliation, as a result of revealing its identity. <snip> http://www.nytimes.com/2001/03/16/technology/16CYBERLAW.html For archives see: http://www.interesting-people.org/
On Mon, 19 Mar 2001, Bill Stewart wrote:
In what was apparently the first Internet defamation case to involve both an anonymous plaintiff and anonymous defendants, the Supreme Court of Virginia refused to grant an unidentified company access to America Online's confidential subscriber information unless the firm agreed to reveal its identity.
I'm missing something here. How is it even possible for an anonymous plaintiff to show defamation? Defamation is identity-linked.
The plaintiff in the case, named in court documents only as "Anonymous Publicly Traded Company," dropped its efforts to subpoena AOL after agreeing on Wednesday to the dismissal of a related case in Indiana.
Hrm. Okay, "related case" - so this company isn't actually anonymous, it's pseudonymous. Still, unless they've got reputation capital in the pseudonym (and it doesn't sound like they do), defamation against it just doesn't scan.
Douglas M. Palais, the lawyer for the plaintiff company, declined to explain why his client had dropped its case.
Duh. They expected him to betray trust, I suppose?
While the litigation is no longer pending, the ruling handed down in Virginia could set a precedent for similar lawsuits across the country. In its decision, the Virginia court said that an anonymous plaintiff could be given subpoena power only if it would suffer exceptional harm, such as a social stigma or extraordinary economic retaliation, as a result of revealing its identity.
Hmmm. I'm not a lawyer, but I think that's over-broad. I'd agree with an anonymous plaintiff having no subpeona power in a *defamation* case, because until the identity is known the crime cannot be assessed. But this reads like they intend for this test to apply in *all* cases, and that's probably not right. Also, this sounds more like a pseudonymous plaintiff than an anonymous one, and there *is* such a thing as defamation against a pseudonym. Also, there's a real question here. Say I've got a pseudonym such as my unsigned PGP key, and I've been using it for years. Now someone says "messages signed by this key are from a child molesting sodomite." On the one hand, there's a defamation case because the pseudonym's value is reduced. It loses a lot of reputation capital. On the other hand, if I now step forward and say "Excuse me, that's my key and I never molested a child in my life -- and I've also never been to the mideast, let alone the city of Sodom...", my identity is linked to the pseudonym, which damages its value further. Also, I may suffer "extraordinary harm" as a result -- there still being people here and there who think stoning anyone suspected of child molesting is better than finding out whether it's actually true. The precedent seems to indicate that a pseudonym cannot be defended under the law. It can only be destroyed. The wording of the decision seems to indicate that the judge does not understand the difference between anonymity and pseudonymity. Bear
On Tue, 20 Mar 2001, Ray Dillinger wrote:
On Mon, 19 Mar 2001, Bill Stewart wrote:
In what was apparently the first Internet defamation case to involve both an anonymous plaintiff and anonymous defendants, the Supreme Court of Virginia refused to grant an unidentified company access to America Online's confidential subscriber information unless the firm agreed to reveal its identity.
I'm missing something here. How is it even possible for an anonymous plaintiff to show defamation? Defamation is identity-linked.
More importantly, you can't bring a criminal complaint anonymously... Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Tue, 20 Mar 2001, Sandy Sandfort wrote:
Jim wrote:
Amendment VI
In all criminal prosecutions...
This was a civil case.
Which raises an interesting point, 'defemation' is presented as a 'crime' yet it is managed in a 'civil' case, thus denying critical civil liberties to the person being acted against. Somebody should look into filing a civil rights case on the constitutionality of treating a 'crime against a person' (ie ruin their reputation) as a civil case (ie mainly resolving disputes and assigning responsibility, not generaly considered crimes.) Of course it's British history would indicate it was really used by the rich to punish those less fortunate but verbally active. Aren't laws in the US supposed to answer to the Constitution and not British legal precedence? ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Jim wrote:
On Tue, 20 Mar 2001, Sandy Sandfort wrote:
Jim wrote:
Amendment VI
In all criminal prosecutions...
This was a civil case.
Which raises an interesting point, 'defemation' is presented as a 'crime' yet it is managed in a 'civil' case, thus denying critical civil liberties to the person being acted against.
Under the common law, defamation is a tort, not a crime. Though some jurisdictions may have a parallel criminal statute against defamation, when one party sues another, it's civil, not criminal. A good analogy would be "battery." Under the common law, the cause of action called battery was defined as an unwanted touching. Case law has filled out that definition with examples, exceptions, etc. Most US jurisdiction also have a crime called battery. So if you hit me, the cops can arrest you and prosecute you for the crime of battery. Independently, I may sue you for the common law tort of battery. Remember OJ?--criminally prosecuted for murder, civilly sued for wrongful death. He skated on the first, lost on the second. Why? Different standards of proof. When the state goes after you, they have to prove their case "beyond a reasonable doubt." When an individual sues you, they have to prove their case "by the preponderance of the evidence." In engineering terms, 98% vs. 51%. All the rest that Jim wrote is gobbledygook derived from a misunderstanding of how the common law works. S a n d y
On Tue, 20 Mar 2001, Sandy Sandfort wrote:
Under the common law, defamation is a tort, not a crime. Though some jurisdictions may have a parallel criminal statute against defamation, when one party sues another, it's civil, not criminal.
A good analogy would be "battery." Under the common law, the cause of action called battery was defined as an unwanted touching. Case law has filled out that definition with examples, exceptions, etc.
Most US jurisdiction also have a crime called battery. So if you hit me, the cops can arrest you and prosecute you for the crime of battery. Independently, I may sue you for the common law tort of battery.
But there's a primary difference you skim right over....damages. What is the reason the civil statute exists? Because some 'damage' has occured. An 'infringement' if you want. The criminal case results from the 'breach of the peace'. The civil case is so the 'defendent' (in this case the person hit) may recover the cost of living with the consequences of anothers action upon them (something that is clearly outside the scope of the 'criminal' law). One question would be "Is it constitutional to apply a civil law which is meant to work in parallel with a criminal statute by itself?" Clearly in a country with the 1st you can't sue somebody, civil or criminal, simply for what they say. You must prove that it is untrue and has caused damages, irrespective of civil or criminal. The only question is the standard. As somebody said recently, it's really fraud. Now how can one, simply by changing the name (fraud -> defemation), move a criminal offence into a civil tort under the 1st? Is the standard constitutional? How can the civil crime of 'defemation' even be brought in a civil court under the 1st? There is clearly no parallel standard such as 'shouting fire in a theatre' with respect to a threat to the population in general. The courts have held that the law is not there specifically to protect the individual, but rather 'society'. Ultimately the real question is: Is it constitutional to differentiate the rights with respect to speech between civil and criminal cases? ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Jim wrote:
What is the reason the civil statute exists? Because some 'damage' has occured.
Wrong. Damages have always been contemplated under the common law tort system. There are numerous and complex reasons that some torts have also been "criminalized."
Ultimately the real question is:
Is it constitutional to differentiate the rights with respect to speech between civil and criminal cases?
Sure, the Constitution is a document that outlines and limits the power of the state over the individual. The common law is the summation of the rights and responsibilities as between individuals. Apples & oranges. S a n d y
On Tue, 20 Mar 2001, Sandy Sandfort wrote:
Jim wrote:
What is the reason the civil statute exists? Because some 'damage' has occured.
Wrong. Damages have always been contemplated under the common law tort system. There are numerous and complex reasons that some torts have also been "criminalized."
There are two common (and legally acceptable) definitions for 'civil law'. The first is any set of law based on Justinian (ie Roman Law) and the second is non-criminal law. But let's focus on 'civil action' for a moment, a reasonable definition for this might be, A legal proceeding instituted to enforce private, civil right or remedy, as distinguished from a criminal prosecution. Now what do each of those first three have in common? A redress of grievance, a righting of a wrong. The distinction is that it relates to 'individuals' rather than society as a whole (ie criminal). Why torts may or may not have been criminilized isn't at issue. Whether a law violates a civil right guaranteed in the Constitution isn't predicated upon it being civil or criminal. That it exists is all that is relevant.
Ultimately the real question is:
Is it constitutional to differentiate the rights with respect to speech between civil and criminal cases?
Sure, the Constitution is a document that outlines and limits the power of the state over the individual. The common law is the summation of the rights and responsibilities as between individuals. Apples & oranges.
Where does the Constitution allow common law? [It clearly does but I'd like to see the spot you believe is the authoritative statement.] What does it say that common law must be predicated upon? [Hint: what must ALL US law be predicated upon?] Does Justinian, or English law qualify? When did Congress pass such a law? Now, if Congress can't constitutionaly create criminal law relating to speech where does it say it allows such an exception for civil? Does "...shall make no law..." not include civil law? Does the constitution say "You don't have a right to lie."? I claim the right to 'lie' (re 9th) Fed's want to regulate it? (re 10th) It is clear that regulating speech is NOT prohibited from the states originaly. However, we now have a specific amendment that spreads those strictures to the states. So, in a situation where the fed's and the state's are prohibited, per the 10th, who get's to decide the issue? Do we have anybody suggesting a 'civil tort exception' amendment? [ Note that my personal belief is that this is a 'bug' in the Constitution, something they didn't intend. I don't think anybody even looked at it from that perspective. ] ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Jim wrote:
Where does the Constitution allow common law? [It clearly does but I'd like to see the spot you believe is the authoritative statement.]
Irrelevant, Jim has already conceded the point in his parenthetic aside.
What does it say that common law must be predicated upon? [Hint: what must ALL US law be predicated upon?]
Natural rights, at least that's what the framers of the Constitution believed.
Does Justinian, or English law qualify?
Other than the oddity of Louisiana, Puerto Rico and the like, there is no US jurisdiction based on civil law, only the English common law. One might as well bring up the law of gravity as the civil law in this discussion.
Now, if Congress can't constitutionaly create criminal law relating to speech where does it say it allows such an exception for civil?
Civil what? The question makes no sense because it assumes facts not in evidence. Civil remedies are under the common law are created by courts not legislatures.
Does "...shall make no law..." not include civil law?
a) Other than Louisiana, etc., there is no civil law jurisdictions in the US. Specifically, the federal courts are based on the common law system b) The word Jim left out was "Congress" ("CONGRESS shall make no law..." The common law is a creature of the courts, not legislatures.
It is clear that regulating speech is NOT prohibited from the states originaly. However, we now have a specific amendment that spreads those strictures to the states. So, in a situation where the fed's and the state's are prohibited, per the 10th, who get's to decide the issue?
The courts.
Do we have anybody suggesting a 'civil tort exception' amendment?
Not required. Torts are not enacted by Congress.
...I don't think anybody even looked at it from that perspective.
Yeah, I think that's safe to say. :-D S a n d y
On Tue, 20 Mar 2001, Sandy Sandfort wrote:
Jim wrote:
Where does the Constitution allow common law? [It clearly does but I'd like to see the spot you believe is the authoritative statement.]
Irrelevant, Jim has already conceded the point in his parenthetic aside.
Not at all, the question is what YOU believe. Not what I believe. Unless you're willing to concede my point now? I didn't think so. Now, you wanna keep dancin'?
What does it say that common law must be predicated upon? [Hint: what must ALL US law be predicated upon?]
Natural rights, at least that's what the framers of the Constitution believed.
Where in the Constitution is the term 'natural rights' used? The Declaration of Independence talks of natural rights, and it's not recognized as a basis for any law. There are two places in the Constitution that describe how laws will be predicated.
Does Justinian, or English law qualify?
Other than the oddity of Louisiana, Puerto Rico and the like, there is no US jurisdiction based on civil law, only the English common law. One might as well bring up the law of gravity as the civil law in this discussion.
I'm not the one who starting quibling over what 'civil law' meant. You're the one who brought up the distinction. My question, and point, still stand.
Now, if Congress can't constitutionaly create criminal law relating to speech where does it say it allows such an exception for civil?
Civil what? The question makes no sense because it assumes facts not in evidence. Civil remedies are under the common law are created by courts not legislatures.
EXACTLY my point, thank you for recognising it so openly. Now go read the Constitution about law, and courts. Who in this country is the ONLY two groups that can make law? One is the states through constitutional amendments. There's one other and it ain't a court. [rest of your wanna-be-tricky word play aside] ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Jim wrote:
Irrelevant, Jim has already conceded the point in his parenthetic aside.
Not at all, the question is what YOU believe. Not what I believe.
What I or Jim, believe is irrelevant in the current context. Jim, the courts and I all agree that Anglo-American jurisprudence is based on the common law, the Constitution notwithstanding. That's good enough for me.
What does it say that common law must be predicated upon? [Hint: what must ALL US law be predicated upon?]
Natural rights, at least that's what the framers of the Constitution believed.
Where in the Constitution is the term 'natural rights' used?
Please re-read my sentence.
I'm not the one who starting quibling over what 'civil law' meant. You're the one who brought up the distinction.
Actually, you brought it up in a mish-mosh or pseudolegalisms. I just clarified the issue.
Civil remedies are under the common law are created by courts not legislatures.
EXACTLY my point, thank you for recognising it so openly.
You're welcome, unfortunately, your analysis is still flawed.
Now go read the Constitution about law, and courts. Who in this country is the ONLY two groups that can make law? One is the states through constitutional amendments. There's one other and it ain't a court.
Right. You are confusing "statutes" and precedents. Courts don't enact laws, but they do create the "common law" through precedents. Apples & oranges, again.
[rest of your wanna-be-tricky word play aside]
Well, if you mean wanna-be lawyer, been there, done that. S a n d y
At 21:07 -0600 on 3/20/01, Jim Choate wrote:
EXACTLY my point, thank you for recognising it so openly. Now go read the Constitution about law, and courts. Who in this country is the ONLY two groups that can make law? One is the states through constitutional amendments. There's one other and it ain't a court.
AND State legislatures AND state courts. Civil law is not a federal function. Notice that in the case that started this whole discussion a state court refused standing. -- "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air--however slight--lest we become unwitting victims of the darkness." -- Justice William O. Douglas ____________________________________________________________________ Kevin "The Cubbie" Elliott mailto:kelliott@mac.com ICQ#23758827
She cannae take any more, Jim ...sheeze breakink up! Choate constitutional tribbles in here...<trekkie tribble noises>. "Laddy, don't you think you should... rephrase that?" - Scotty, The Trouble with Tribbles.
From Choate's 1L sig, the Fount of Fugue:
If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority?
You gnaw at a branch and call it a root. You have common law (the law of common men, lex communis), and legislative law (bringing the law of the sovereign). Common law precedent is an aggregate body of knowledge consisting not only decisions, but of logical constructs -- a way of approaching and framing legal thought. Common law has never been codified in a document, it's a body of relational knowledge. The Constitution is not the primary authority, because constitutions (legislative law) are not the root of what you see as law. Indeed, the US Const. finds root in common law and common right. Lex est ab eterno. Athenian Constitution -- Aristotle, 350 B.C.E. http://classics.mit.edu/Aristotle/athenian_const.html "...and it is to this last, they say, that the masses have owed their strength most of all, since, when the democracy is master of the voting-power, it is master of the constitution. Moreover, since the laws were not drawn up in simple and explicit terms .... disputes inevitably occurred, and the courts had to decide in every matter, whether public or private .... The Thesmothetae were many years afterwards, when these offices had already become annual, with the object that they might publicly record all legal decisions, and act as guardians of them with a view to determining the issues between litigants." ~Aimee
Aimee wrote quoting Jim:
If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority?
You gnaw at a branch and call it a root. You have common law (the law of common men, lex communis), and legislative law (bringing the law of the sovereign). Common law precedent is an aggregate body of knowledge consisting not only decisions, but of logical constructs -- a way of approaching and framing legal thought. Common law has never been codified in a document, it's a body of relational knowledge. The Constitution is not the primary authority, because constitutions (legislative law) are not the root of what you see as law. Indeed, the US Const. finds root in common law and common right.
Lex est ab eterno.
Correct, to which I would add: "Precedent" is a word of art. It means the decision of an appellate court to which lower courts must defer. The Constitution can no more be a "precedent" that it can be a banana. S a n d y
On Wed, 21 Mar 2001, Sandy Sandfort wrote:
Correct, to which I would add:
"Precedent" is a word of art. It means the decision of an appellate court to which lower courts must defer. The Constitution can no more be a "precedent" that it can be a banana.
It comes from 'precede' to 'come first or before' as in importance or scope of coverage (with respect to court authority). The Constitution is clearly superior in authority over any and all courts in America. Therefore any ruling they may emit must comply with the Constitution. Quibling over whether that fits the strictest legal definition of 'precedence' is nothing more than a strawman. ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Jim wrote:
It comes from 'precede' to 'come first or before' as in importance or scope of coverage (with respect to court authority).
The Constitution is clearly superior in authority over any and all courts in America. Therefore any ruling they may emit must comply with the Constitution. Quibling over whether that fits the strictest legal definition of 'precedence' is nothing more than a strawman.
No quibbling, just explaining what the common law is. Anyone who wants to believe that the Constitution is precedent court ruling recognized under the common law, is welcome to do so. Trouble is, it just ain't so. You can woulda-coulda-shoulda all day long, but that won't change the facts. You can spend three years in law school and learn something, read a book or two about the origins Anglo-American jurisprudence or live in darkness. The choice is yours. S a n d y
At 00:09 -0800 on 3/22/01, Sandy Sandfort wrote:
Jim wrote:
It comes from 'precede' to 'come first or before' as in importance or scope of coverage (with respect to court authority).
The Constitution is clearly superior in authority over any and all courts in America. Therefore any ruling they may emit must comply with the Constitution. Quibling over whether that fits the strictest legal definition of 'precedence' is nothing more than a strawman.
No quibbling, just explaining what the common law is. Anyone who wants to believe that the Constitution is precedent court ruling recognized under the common law, is welcome to do so. Trouble is, it just ain't so. You can woulda-coulda-shoulda all day long, but that won't change the facts. You can spend three years in law school and learn something, read a book or two about the origins Anglo-American jurisprudence or live in darkness. The choice is yours.
I disagree. If some judge were to make a ruling that went against the constitution, even if the case law in question was entirely within common law, his ruling would be unconstitutional and thus null an void (after it was filtered through the appellant process and invalidated of course...). However, in practice I can think of no situation where this could occur- civil law (the primary area where common law rules) simply does not involve anything the constitution says anything about. -- ____________________________________________________________________ volatile: Because all programs deserve SOME interrupt code... ____________________________________________________________________ Kevin "The Cubbie" Elliott mailto:kelliott@mac.com ICQ#23758827
Kevin, You wrote:
I disagree. If some judge were to make a ruling that went against the constitution, even if the case law in question was entirely within common law, his ruling would be unconstitutional and thus null an void (after it was filtered through the appellant process and invalidated of course...). However, in practice I can think of no situation where this could occur- civil law (the primary area where common law rules) simply does not involve anything the constitution says anything about.
The reason you cannot think of such a situation is because there is none. The common law is derived from appellate rulings. If a lower court goes against the common law, it will be overruled when it reaches the appellate level (assuming it is appealed; lots of cases aren't, but they have no bearing on similar future cases; only appealed cases do). If they conform to the common law, they will be affirmed on appeal and that will stand since the issue has already been adjudicated once before and upheld on appeal. Also as you figured out, there is little or no overlap between the common law and constitutional admonitions against government action. If you can come up with a concrete example, we can discuss it. S a n d y
At 19:17 -0800 on 3/23/01, Sandy Sandfort wrote:
Kevin,
You wrote:
I disagree. If some judge were to make a ruling that went against the constitution, even if the case law in question was entirely within common law, his ruling would be unconstitutional and thus null an void (after it was filtered through the appellant process and invalidated of course...). However, in practice I can think of no situation where this could occur- civil law (the primary area where common law rules) simply does not involve anything the constitution says anything about.
The reason you cannot think of such a situation is because there is none. The common law is derived from appellate rulings. If a lower court goes against the common law, it will be overruled when it reaches the appellate level (assuming it is appealed; lots of cases aren't, but they have no bearing on similar future cases; only appealed cases do). If they conform to the common law, they will be affirmed on appeal and that will stand since the issue has already been adjudicated once before and upheld on appeal.
That's not really what I'm trying to say. The question is, is it possible for a ruling to be valid under common law and invalid under the constitution. I think the answer is no and the reason (as you may have been trying to say) is that the constitution is a part of common law, and all decisions since it's creation have, by definition, been either constitutional or overruled on appeal. -- ____________________________________________________________________ volatile: Because all programs deserve SOME interrupt code... ____________________________________________________________________ Kevin "The Cubbie" Elliott mailto:kelliott@mac.com ICQ#23758827
Kevin, You wrote:
That's not really what I'm trying to say. The question is, is it possible for a ruling to be valid under common law and invalid under the constitution.
I'm not sure your question is meaningful. It's sort of like, "can God make a rock so heavy he can't lift it?"
I think the answer is no and the reason (as you may have been trying to say) is that the constitution is a part of common law, and all decisions since it's creation have, by definition, been either constitutional or overruled on appeal.
Well, contrary to the Subject, Choate's, assertions, the common law PRECEDED the Constitution and was implicitly incorporated therein (as shown by the Subject, Choate's, own recitation of the appropriate Constitutional clauses). So, in a sense, I guess you would be right in saying that the Constitution is a part of the common law. S a n d y
Kevin, I think, said: However, in practice I can
think of no situation where this could occur- civil law (the primary area where common law rules) simply does not involve anything the constitution says anything about.
Civil law and common law are distinct and oppositional terms. At least they were once. I don't think you could find a "pure" legal tradition in developed nations, at least not under my understanding of these polluted concepts. (Note: I refer to to civil law the same way as Kevin did in everyday conversation, as do most lawyers.) But more correctly... Civil law: Corpus Iurus Civilis 535 CE Justinian (Roman Law - very few sovereigns, Scotland, I think...); history, statutory interpretation; stone tablets - 10 Commandments (broad principles anticipate all situations); rigidity. Common law: 11th Century England; fact patterns; stare decisis; flexibility; change-with-the-times; go-with-the-flow. Jim seems to see/k a pure civil law tradition in the US. If we were in a *totally pure* civil tradition, his questions would be on the mark. However, we have a common law legal tradition - even in regard to constitutional interpretation. Choate advocates a pure civilist legal tradition with THE CONSTITUTION as the fount. Maybe so does Scalia, but just in regard to the US Const: http://aaup.princeton.edu/cgi-bin/hfs.cgi/99/princeton/5937.ctl For Choate to even sense the question(s), to get so near it/them... demonstrates some sort of constitutional idiot sapiency, nevermind his digital personality disorders. (That's a compliment, Choate.) And, Choate is (in layman's terms) to some extent correct in regard to revolutionary "reset" buttons, or divorce lawyers across the country would be citing The Code of Hammurabi: 132. If the "finger is pointed" at a man's wife about another man, but she is not caught sleeping with the other man, she shall jump into the river for her husband. (Hammurabi is ancient family law code... he had the answer to that paternity thread.) ~Aimee
On Wed, 21 Mar 2001, Aimee Farr wrote:
You gnaw at a branch and call it a root.
Opposite ends of the same thing. You can't have one without the other so in a very real way to eat a potato is to chew on a potato branch (in a figurative way of course).
You have common law (the law of common men, lex communis), and legislative law (bringing the law of the sovereign).
You draw a false distinction, the Constitution starts out with what phrase? Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Choate said: (Quoting me)
You have common law (the law of common men, lex communis), and legislative law (bringing the law of the sovereign).
You draw a false distinction, the Constitution starts out with what phrase?
Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
NO. 1 JIM CHOATE, PLAINTIFF ' ' VS. ' CYPHERPUNKS ' AIMEE FARR, DEFENDANT ' MOTION TO QUASH CONSTITUTIONAL CHOATIAN THREADS TO THE HONORABLE JUDGE OF CYPHERPUNKS: NOW COMES ~Aimee, hereinafter referred to as "Defendant," and files this Motion To Dissolve Constitutional Choatian Threads and would show: 1. Whereas Defendant is alleged to "draw" constitutional false distinctions, Plaintiff "doodles" them. 2. Defendant's aim was to give Plaintiff some historical context for legal delineations, which have become blurred over the ages (and marred by legal authorship blinded by egocentric political/time views). Chieftain-king-sovereign-legislative law deals with the individual<-->"king" relationship. Ancient common law is man<-->man law, arising out of custom and usage. While common law no longer plays the role it once did (being usurped by statutory/legislative law) some distinctions remain that were carried over into English common law. Furthermore, Defendant would show that not every legal question invokes the purview of the US Const., because it lies outside of the individual<-->"king" relationship, and even our enhanced interpretations of the same. In a historical context, "legislative law" (Lat. "bringing law") *includes* constitutional law, and is therefore not a false distinction, although perhaps a modern linguistic misnomer. Defendant went as far back as Aristotle, before many legal divergences. 3. Plaintiff ignores the role of the courts and treats the US Const. as the wellspring of ALL law in this country. It is the wellspring of many things, (indeed, more than The Framers ever contemplated) but it is not the singular Garden of Eden for all U.S. jurisprudence. Plaintiff repeatedly mischaracterizes political opinion as legal argument, and proffers arguments based on his own "tarot card reading" of the U.S. Constitution. 4. Plaintiff's constitutional questions grow like kudzu...wandering, in the opinion of many, far from any questions of direct and particular relevance to this forum. Plaintiff should pick up some law outlines/bar reviews and go beyond the letter of the Constitution and the words of the founding fathers. Plaintiff should take some courses, join some *constitutional law mailing lists*, and multidisciplinary legal societies to broaden Plaintiff's frame of reference so he may entertain more complex constitutional analysis, and pose questions that are more likely to be of interest to IAAL and IANAL constitutional thinkers. See _Sunder v. Choate_, Message-ID: 3AAE7D40.EC9C0BCF@sunder.net ("Clue: this is cypherpunks, not lawyerpunks."); _Sandfort v. Choate_, Message-ID: NDBBJHDEELOIJNHFGNOFEEMEDCAA. sandfort@mindspring.com ("You can spend three years in law school and learn something, read a book or two about the origins Anglo-American jurisprudence or live in darkness. The choice is yours."). CERTIFICATE OF SERVICE This is to certify that on March 22, 2001, a true and correct copy of the above and foregoing document was served on JIM CHOATE, Plaintiff, by ravage@EINSTEIN.ssz.com. ORDER SETTING HEARING On this the 22nd day of March, 2001, came on before me the foregoing Motion To Quash; and It is ordered that said motion is hereby set for hearing before the Court at Cypherpunks@lne.com ("mailing list") at 12. A.M. on March 22, 2001. Signed this the 22 day of March 2001. _______________________________________ JUDGE CYPHERPUNKS Respectfully submitted, ~Aimee
On Wed, 21 Mar 2001, Aimee Farr wrote:
She cannae take any more, Jim ...sheeze breakink up! Choate constitutional tribbles in here...<trekkie tribble noises>. "Laddy, don't you think you should... rephrase that?" - Scotty, The Trouble with Tribbles.
Hey Boo, what's up with you? Thought maybe you'd dropped since I hadn't seen a comeback on that last email I sent you.... I'd still like to hear your replies to the questions I posed you. But life is filled with shallow disappointment I suppose. Ta ta ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Tue, 20 Mar 2001, Jim Choate wrote:
Of course it's British history would indicate it was really used by the rich to punish those less fortunate but verbally active. Aren't laws in the US supposed to answer to the Constitution and not British legal precedence?
I know you're not going to like this, Jim, but cases that were tried in Rome a couple thousand years ago are still considered as part of the body of precedent. You thought there was no reason why lawyers learned Latin? The line of precedent runs back across the 230-odd years of America, hits a speed-bump at the constitution, goes back to several centuries of British cases (French cases if you happen to live in Louisiana), hits another speed bump at the magna carta, and then cruises further back from there into Italian courts, from there into Roman courts, and even in a few cases goes back further than that to the old Greek courts. It's all in there, dude. The history of our particular branch of civilization in microcosm. Bear
No kiddin'.... On Tue, 20 Mar 2001, Ray Dillinger wrote: [insulting stupidity deleted]
At 17:14 -0600 on 3/20/01, Jim Choate wrote:
Which raises an interesting point, 'defemation' is presented as a 'crime' yet it is managed in a 'civil' case, thus denying critical civil liberties to the person being acted against.
How is it presented as a crime? 1. You can't go to jail for it. 2. The government won't prosecute you for it. Doesn't sound like a crime to me... -- "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air--however slight--lest we become unwitting victims of the darkness." -- Justice William O. Douglas ____________________________________________________________________ Kevin "The Cubbie" Elliott mailto:kelliott@mac.com ICQ#23758827
participants (7)
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Aimee Farr -
Bill Stewart -
Jim Choate -
Jim Choate -
Kevin Elliott -
Ray Dillinger -
Sandy Sandfort