Quote:
Originally Posted by darryl
@pwalker8. I use the term in a less rigorous sense than the logical fallacy of argument from authority, as should be obvious from my post. You are appealing to the authority of your sister as a qualified lawyer implying she agrees with your mangled understanding of precedent.
As for myself, I had the pleasure of practising law and also teaching it at a university. Not of course in the US, though I suspect you will find few lawyers in common law countries who agree with your view of the essential worthlessness of the doctrine of precedent because of its inconsistency. It is of course not perfect, but tends to err more on the side of rigidity. You may like to do some reading about the development of the law of equity.
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I kind of figured that is where you are coming from. I assume that you do understand that copyright law and the legal tradition in the US is very different from Commonwealth countries. While in theory, the US is a rule of law country and the judges simply apply the law, there are many situations where judges apply their own judgement. Roe v Wade and the trimester rule is the most famous example. No where does that appear in any legislation passed by Congress or in the Constitution. Fair use in copyright was originally a judicial concept and did not appear in copyright legislation until much later. Anti-trust is mostly derived from rulings rather than legislation.
While common law countries might disagree with my characterization, that characterization is this basis of a school of thought in the US legal system.
“American legal education has long been devoted to the training of common-law lawyers, and hence common-law judges. What aspiring lawyers learn in the first, formative year of law school is how to discern the best (most socially useful) answer to a legal problem, and how to distinguish the prior cases that stand in the way of that solution. Besides giving students the wrong impression about what makes an excellent judge in a modern, democratic, text-based legal system, this training fails to inculcate the skills of textual interpretation.”
- Justice Antonin Scalia.
There is a reason why decisions in the appellate court system are not all unanimous and why judges write dissenting opinions.