Yes, and despite all of our laws being subject to a constitution that made notable breaks feudal English law, we're still have a common law system. Which forces me to ask the question, what exactly do you think common law is?
Do you think that a common law system cannot exist under a constitution?
I believe I argued the contrary, I'm just trying to understand your position when you suggest that statutory law is not compatible with common law.
You don't get around to reading SCOTUS transcripts/opinions too often, do you? They pretty much spend their time discussing two things: the impact of their decision on future hypothetical cases and past precedent. And I must confess, I can't remember the last time a pro se litigant who was not a member of the Supreme Court Bar argued a case before the Supreme Court (This piece of trivia actually sparked my interest, I was thinking Kolender v. Lawson, but I looked up the court transcript and it appears he argued his case up through the appellate court, but an amicus curiae argued the case before SCOTUS. You don't happen to know the last time this occurred, do you?). But, you're right, I'm sure stare decisis doesn't come up too often in traffic court.
Actually, I don't. I bet you don't, either. I tend to only read the opinions that are in the news or have impact on my practice; a good example of the latter would be the AT&T Mobility v. Concepcion case, which is relevant to this discuss because it touched on unconscionability. I was able to cite it and the subsequent 11th Circuit case of Cruz v. Cingular Wireless, LLC (which followed Concepcion) in a recent case of mine in order to compel arbitration. As a practical matter, the US Supreme Court is very rarely cited in state court practice, and not that much more in federal practice. Intermediate appellate courts are what is cited as authority the great majority of the time, although in federal court, district court decisions are also good authority.
Why don't I (and you) read most Supreme Court cases? Because contrary to popular belief, the Supreme Court doesn't decide abortion and first speech cases all day. Most of what they do is pretty boring stuff about minimal contacts for personal jurisdiction, the doctrine of equivalents, and the like. Most people are not thrilled to read cases about whether Rule 23 preempts state law in a class action brought in federal court under diversity jurisdiction.
In response to your rude crack about traffic court, I have a commercial litigation practice. I have a number of cited opinions, both state and federal, if you would like citations.
Contrary to popular belief, with the exception of landmark cases picked up by the news media, the cases that get the most interest and most attendance tend to be ones that deal with procedural issues, for the simple reason that these tend to be the most useful for lawyers in their day to day practice. Personally, I think some of the most interesting cases to read/listen to are those that deal with admiralty law, unfortunately those don't come up too often (most admiralty law is pretty well settled) and I haven't seen any this term. First amendment cases have become a lot less interesting under the Roberts court simply because it's become a lot easier to predict the outcome, not that I'm complaining, I quite like where the court has gone with first amendment law. Second amendment cases are now the more interesting ones because it's such new territory.
And, no I don't invest myself in a majority of the cases, but I tend to read/listen to somewhere between a quarter and a half of the cases in a term...I usually read the argument previews on scotusblog then go into more depth if I find the case interesting, in any case I usually also read the argument recap and summary of the opinion even if I don't dig any deeper in a case. I also download the audio recordings every Friday and will listen to some of them over the weekend since TV sucks on the weekends.
Also, sometimes the most fun cases surprise you, this term Smith v. Cain
was a great oral argument, yeah there was nothing new from a legal standpoint (I really don't even know why they heard the case), it was a straightforward application of Brady, but it's rare to see the Justices tear someone apart like they did to the New Orleans ADA, I think she'll need therapy to get over her first case argued before the court, I believe Kagan even accused her of corruption, or at least covering up corruption, at one point. I read the transcript the afternoon after arguments, but it was so good I downloaded and listened to it again that Friday. If the petitioner's argument wasn't so bad and absurd I would have probably felt sorry for her (as it is, she kinda deserved it). If you haven't listened to it, download it, it won't disappoint.
But whatever the Supreme Court does, it's rarely boring, their criteria for selecting cases ensures that.
On a related note, scotusblog just announced that we're getting same day release of audio recordings for the health care cases!!! Not that I support doing it regularly and I definitely don't support cameras in the Supreme Court, but it's still a bit exciting.
But just to make sure I'm reading this right, are you really arguing that stare decisis is not the foundational principle of common law?
I never implied anything of the sort. I simply wondered why you threw out the term. I know that Latin sounds impressive, but stare decisis gets talked about during one class session in the first year of law school and that's about it. No one ever cites to it in practice.
Oh, you just don't like the term...
I never went to law school and I can't speak to the preferred jargon amongst lawyers. But in my observation of SCOTUS and of Congressional hearings for judicial appointments it seems that they use the term 'stare decisis
' when discussing the concept of stare decisis
, but they just speak of 'precedent' when actually applying stare decisis
in practice. Since we were talking about the concept of stare decisis
and its role in common law, I had assumed that it was the preferred term in that particular context.
I was under the impression that "gross inequality of bargaining power" was, in and of itself, evidence of unconscionability; I have yet to come across anything that specifies that said "gross inequality of bargaining power" has to be caused by one of the parties. By that reasoning, if a man dying of thirst entered into a contract where he would owe his benefactor half his income for the rest of his life in exchange for a canteen of water, providing full disclosure and no coercion to enter into the contract on behalf of the benefactor, this contract would be upheld in court since the "gross inequality of bargaining power" was not actually caused by this so-called benefactor, he was merely taking advantage of pre-existing conditions that were entirely outside his control.
Perhaps you could point me to the existing case law that would support upholding that contract?
You were under the wrong impression. "Gross inequality of bargaining power" is NOT, in and of itself, evidence of unconscionability. And remember, there are two kinds of unconscionability, so you need to specify that what you meant to say was "procedurally unconscionable".
I thought you had already conceded substantive unconscionablity. Are you flip-flopping or do you just prefer arguments about jargon over substance? There's no jury here, not sure who you're trying to impress.
Allow me to give you a recent real life example. I will ask you to give your legal insight and once you have, I will share with everyone "the rest of the story". (just like Paul Harvey!)
An elderly man has a medical crisis at home, which requires an ambulance. The ambulance rushes him to a nursing home. Once there, his wife and daughter meet with the admissions director and go over a 35-page admissions packet. In the middle of the packet is a one-page agreement saying that signing the papers waives the right to sue the nursing home in court if anything should happen. The man's wive has macular degeneration and cannot read small or regular size print, and she thinks that she must sign the papers for the home to treat him, so she signs the papers. Well, something bad happened soon afterwards and the husband died while in the nursing home's care. The widow wants to sue the nursing home for negligence and wrongful death, but the nursing home responds that she waived the right to sue in court.
What is your analysis of the unconscionability issue, and why?
What was on that page? Was it something outlandish like a release from all liability including liability resulting from criminal malpractice or was it a simple arbitration agreement? If it's the latter, the case is obvious, especially in light of recent SCOTUS decisions on arbitration (not that I agree with those decisions, I think they're part of a wider trend eroding due process, but it is what it is). If it's not a case about arbitration, I'll need a little more information such as the content of the page in question (or at least all the legally relevant details) and the jurisdiction in which the case was heard.
No, I'm not describing procedural unconscionablity here, that was in the previous paragraph...please try to keep up.
Here I'm outlining a constitutional argument that would still be relevant even IF the issue of inequality of bargaining power were addressed (which it hasn't been). Forcing someone to remain in a contract, for their entire life without the possibility of escape, where they are expected to give the fruits of their labor to another without just compensation would amount to involuntary servitude. Forget common law, contract that essentially turns an individual into a slave would not be enforceable under the 13th amendment.
I am keeping up just fine. The problem is yours because you think that inequality of bargaining power is per se evidence of unconscionability. That is simply not the law. As a practical matter, think of your bargaining power compared to FedEx. Every time you have them ship something, you are in contract with them. Is that somehow an unconscionable arrangement?
I could think of a few scenarios in which such a contract could be brought into question, especially taking into account the Postal Clause of the US Constitution, though not purely on the basis of contract law. But it would require FedEx to be a monopoly (in violation of the Sherman Anti-Trust Act) and, therefore, the Post Office not to exist (possibly a violation of Article I...but that's questionable)...given those conditions, I'm sure I could come up with a scenario if I thought about it.
But unlike Fedex, the government has a monopoly on marriage licenses and can make absolute terms that have the potential to deny access to a fundamental human right; Fedex could not possibly have the same power, even if they were a monopoly I still have the option of delivering the package myself, and it's hard to come up with a scenario in which not having your package delivered is a violation of your constitutional or human rights, whereas when being denied access to marriage, it's a much easier argument to make.
You're right, it does, but the scary thing is that you're no better at this than I am and the only time I have to defend my position is when I'm killing time on an internet forum.
The Dunning-Kruger effect allows you to make this comment.
If it makes you feel better, why not...but it still doesn't give any substance to your arguments. You may or may not be a capable corporate lawyer, I really don't know, but you have yet to demonstrated a solid academic understanding of legal theory. By now this should have evolved into a discussion of Blackstone, Locke, and Adam Smith since that is what would actually help us answer the question "Is marriage law turning into a subset of contract law?'. Instead we're stuck trying to reinvent the wheel by deriving a theory of contract law from recent court cases; I may have read Blackstone and while I'm capable of regurgitating his work I doubt either of us are qualified to duplicate it.
Exclusive to insurance, eh? Guessing you've never bought a house?
What part of "pretty much" don't you get? What you are talking about would fall under a majority of headings such as exculpatory clauses, impossibility clauses, force majeure, and so on. Like I said, "escape clause" has a definite connotation of insurance coverage.
Oh, I see CJ Rehnquist, we're back to arguing about jargon again.