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< < | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | Swimming in transcendental nonsense | | Felix Cohen’s assertion that “legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith,” makes more sense than anything else I’ve read thus far in law school. That may be because much of what I have read makes no sense at all. Most legal doctrine doesn’t square with common sense, with my innate hunches, because, like Cohen says, the law is neither based in morality nor logic. | |
< < | I’m not a saint, but I consider myself an ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical-a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither. | > > | I’m not a saint, but I consider myself an ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical—a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither. | | | | Courts base the “no duty to rescue” idea on the basis that sometimes, a person may endanger him or herself by attempting to save another. Under this rationale, the rule concededly makes sense in some situations; it seems ludicrous to hold a person liable for not jumping in front of a bullet or moving car for another, regardless of their relationship to that person. However, should that same person be free from duty while watching a child drown in a pool as they leisurely stroll past? The court fashions a “one-size-fits-all” rule, while different scenarios demand a case-by-case analysis. The jurisprudence of good samaritan law is abhorrent in that it places paramount importance on judicial administration, while being completely divorced from morality. | |
< < | | > > | You don't actually mean
"Good Samaritan Law." That would involve imposing liability on those
who offer help but do so negligently, or in a fashion that causes
further harm. Here you are discussing a duty to rescue, or a duty to
interfere with crimes, or to call the police. One question you might
have wanted to ask if you were going to announce that the existing
situation is senseless or immoral, is how wide the resulting duty
should extend. If someone in an urban setting is attacked or killed,
do you prosecute everyone within earshot who didn't call the police?
If not, how do you justify selecting the particular people you
prosecute? With respect to your child abuse case, do you actually
interfere in every case of parental overdiscipline you come across in
life? Current law charges some parties with that duty, or at least a
duty to report, given their social rules and presumable training. A
broad imposition of duty, which presumably also implies limited
immunity from liability for the resulting actions, might cause more
harm than it prevented. As you yourself say, the question of duty
will require resolution in light of facts in particular cases, so
what is under discussion here is whether the rule should begin from
an imposition of general duty subtracted from in individual cases, or
a general imposition of no duty, added to legislatively or by
judicial determination under common law adjudication. In the
criminal law, the principles of power restraint and fair warning
certainly seem to militate strongly against general duties,
while—as you say—conversation over a general civil duty
to rescue can be waged with great fervor on both sides, and
is. | | Many civil law doctrines have no rational basis | |
< < | In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death? In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.
Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless. This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance. | > > | In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death? | | | |
> > | I'm not sure why the
mourning is relevant. Surely the claim is not for the sorrow of the
mourners, but for the harm done to the people who lost their lives.
Or why bringing suit where the parents live is so obviously
important. Is the rule that relatives should always be allowed to
sue where they live, even though the action they are bringing is not
for the vindication of their own legal interest? Or that wrongful
death actions should always be maintainable in the domiciliary
jurisdiction of the deceased? "Where" that harm happened is indeed a
matter of mere metaphysics, but this is about whether the explanation
for the decision about where to sue is logical. If North Carolina
extends its law of personal jurisdiction to the 14th amendment limit,
it is more than likely it can exercise jurisdiction over the lawsuit.
But why, for example, if a child from Guam is killed in an accident
in a mom-and-pop store in North Carolina, would you subject the
defendants to the burden of a lawsuit in Guam? Your real point was
about the balance of hardships between Goodyear and the Brown
parents. So why are you talking about where the injury "really"
occurred (which is also nonsense), rather than stating that in all
fairness and justice, considering the balance of the hardships and
the nature of the interests, it is reasonable for Goodyear to be sued
in North Carolina?
In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.
Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless.
That depends on how the
reduction in value occurred. And you haven't explained how you meet
the objection on the other side. Is it ethical for property-owners
in a society to be given veto power over all social regulation,
through a requirement that government compensate fully everyone whom
the regulation costs? When Holmes said that "regulation could hardly
go on" if all regulatory diminutions in value were compensable, he
was not wrong. You had at least to explain how you determined this
is not a problem.
This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.
This isn't meaningful.
You should drop it. The value of "just compensation" in judicial
proceedings in the US is a fact matter: fair market value determined
(at the plaintiff's desire) by a jury. | | | | If legal concepts continue to be so removed from ethical and reasonable considerations, the law will definitely continue to be a weak form of social control. With the law in its current formalistic state, maybe that is not such a bad thing. | |
< < | Words: 956
| > > | This is not a warranted conclusion. Whether law is a weak or strong form of social control doesn't depend on whether the results seem logical or ethical to you. If the results in all the classes of cases you discuss where what you think you want them to be, the strength of the law as social control would not have changed at all. | | | |
> > | This draft benefits from
vigor of argument, but the breadth and precision are not equal to the
vigor. Your examples are themselves subject to more careful
analysis: the two not actually drawn from Cohen have not been argued
out with due attention to the arguments on the other
side. | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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