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naraburns  nihil supernum  1yr ago (text post)   29714 thread views

Culture War Roundup for the week of December 12, 2022

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I dunno. I'd rather have a system where rather than standing we had a genuine lawyer-on-lawyer position where a law could be debated from legal principles without someone's freedom or livelihood playing the ante to the case, but I don't know the possible downsides and I do know there's little if any interest for the state to support such a system (outside of a limited free speech and, until last year, abortion exception).

Yeah, it's infuriating to me that the legislative and executive can pass and sign a law, spend lots of time and money enforcing it, and then only when someone's rights are actually infringed upon, does someone have to gamble by breaking the law and challenging it. And, this process may take years (all the while the state can often keep enforcing the law) and lots of money, and may result in failure for any number of technicalities, or result in the offending government pulling the rug out to render the exact case moot while keeping all of the substantial infringing provisions (like New York did before Bruen and I think is trying to do again), or result in the court granting relief on some specific case without addressing the big issue (like with one of the original Colorado baker/photography cases, which didn't address whether the law was constitutional, but was resolved based on the outright animus the commission in charge had for religion).

One issue is the strength of precedent--as zeke points out, you could rush to challenge a law in a way that is deliberately going to fail, and then use this precedent to prevent future challenges. Having a long process, requiring standing, requiring that other factors are not obscuring the relevant issue, etc. does make it harder to deliberately bring a weak challenge. Overturning precedent is difficult, but it does happen; it's probably net positive that courts are reluctant to say "no this previous court was just wrong from the get-go." On the other hand, the legal system already has a concept of "bad faith" and it seems like it should be relatively easy to identify that, say, an organization which explicitly supported some law is also supporting the lawsuit "challenging" it. Similarly it already has a concept of "vexatious litigants", as well as laws for specific cases like anti-SLAPP and PLCAA, even if such protections are probably under-utilized. So it seems like there are many avenues to prevent or invalidate bad-faith legal proceedings and punish those involved.

Yeah, it's infuriating to me that the legislative and executive can pass and sign a law, spend lots of time and money enforcing it, and then only when someone's rights are actually infringed upon, does someone have to gamble by breaking the law and challenging it. And, this process may take years (all the while the state can often keep enforcing the law) and lots of money, and may result in failure for any number of technicalities, or result in the offending government pulling the rug out to render the exact case moot while keeping all of the substantial infringing provisions (like New York did before Bruen and I think is trying to do again), or result in the court granting relief on some specific case without addressing the big issue (like with one of the original Colorado baker/photography cases, which didn't address whether the law was constitutional, but was resolved based on the outright animus the commission in charge had for religion).

Yes. You can't precedent or procedure or automate your way around the bedrock truth that societies work more smoothly when everyone (1) is approximately on the same page, (2) is willing to act on the spirit of the rules rather than the letter, and (3) trust the other side to do so as well.

Without those things, everything just devolves back into low-trust, cynical, you're-not-winning-if-you're-not-cheating hardball.

and it seems like it should be relatively easy to identify that, say, an organization which explicitly supported some law is also supporting the lawsuit "challenging" it.

It is, and the concept of the "friendly suit" is known to the courts. But of course these procedural issues work only if the court wants them to work; the courts are supposed to be impartial but they are often not. See for instance Bruen, where a number of gun cases in the appeals decision had their circuit-level decision vacated and remanded. The Circuit Courts, rather than deciding the cases according to the Bruen precedent, sent them back to the District Courts, nominally to have the issues re-litigated but more likely just as a delaying tactic to keep the laws in play until Bruen can be completely gutted by the lower courts.

Sadly, "the courts all make up their own laws" is not a problem that any system can solve, short of getting rid of courts (or making them so secondary to the legislature they may as well not exist); symmetrically, the legislature can ignore the constitution, unless restrained by another branch. Any legal system has to be enforced by people.

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