Theme: Constitutional Order

How Our Lower Courts Create False Positives That Confuse the Public.
(Re: Trump/Biden candidacy. Chevron Defense, and more)

The lower courts (below the supreme court) are expected to adjudicate all cases before them regardless of the court’s competency, clarity of the law, or the decidability of the case before them.

There is no provision where a lower court can defer a case to a higher court without issuing an opinion (decision), leaving the act of (costly) appeal to the parties.

Yet there are many cases where the matter is not of resolution of conflict between facts, or resolution of conflicts between competing legislation and law, but resolution of conflict or lack of clarity in constitutional matters.

So, in our legal systems, lower courts generally do not declare a matter “undecidable” and then defer it to a higher court. Instead, the process usually involves specific procedures and grounds for appealing a lower court’s decision to a higher court.

The result is the lower courts are forced to issue specious decisions that rapidly attract public attention even if the arguments or the decision are – as in more cases than you’d expect – rather ridiculous.

As such the people cannot invest too much interest in lower court decision that rests on ‘unsettled’ law, in particular constitutional clarity, until those matters are considered by at least an appellate, but in the most contentious unsettled matters, the supreme court.

Here’s how our court system typically works:

Decision-Making in Lower Courts:
Lower courts (like trial courts) are responsible for hearing cases, evaluating evidence, and making decisions based on the applicable law. They are expected to reach a decision on the matters before them, even if the case is complex or challenging.

Appeals Process:
If a party involved in a case disagrees with the decision of a lower court, they have the right to appeal to a higher court. The grounds for appeal might include claims of legal errors, misinterpretation of the law, or issues with how the trial was conducted.
The appeal is not a simple deferral; it’s a formal process where the appellant must provide a basis for why the higher court should review and potentially overturn or modify the lower court’s decision.

Role of Higher Courts:
Higher courts (like appellate courts or supreme courts) primarily review lower court decisions to ensure the correct application of law and legal principles. They do not typically re-examine factual evidence but focus on legal and procedural aspects.
If a higher court finds that there were significant legal errors in the lower court’s handling of the case, it may overturn the decision, modify it, or remand the case back to the lower court for a new trial or further proceedings.

Undecidability Not a Typical Ground for Appeal:
The concept of a case being “undecidable” is not a standard legal ground for appeal. Courts are expected to apply the law to the facts of the case and reach a decision, even in complex scenarios.
However, if a lower court finds that it lacks jurisdiction or that the case involves legal questions beyond its scope, it might dismiss or transfer the case, potentially leading to it being taken up by a higher court.

Summary
In summary, while lower courts do not typically defer cases to higher courts on the basis of undecidability, there are established mechanisms for appealing decisions and having higher courts review cases for legal errors or misapplications of law.

And… that’s not a good thing – at least – if the people can interpret such a matter as more settled than it is.

Cheers
– CD

PRESENT ISSUES: TRUMP CANDIDACY AND THE CHEVRON DEFENSE

There’s a lot of current legal commentary by a lot of well meaning legal practitioners, but given that there is a dispute over the foundation of the law (the logical basis) and a dispute over the faith in the institutions of government, there is a great deal of difference between opinions offered. And they vary from really bad, to missing the point, to making excuses, to reasonably cogent.

Back when it was clear the economics profession was going to crash pre-2008, I considered devoting my time to correcting economic thought.

But I understood the problem with economic thought was predicated on a problem of legal thought that would limit the use and abuse of economic thought.

And that the only way to solve the problem was the truth, meaning, continuing my work universally commensurable language of ethics and politics and extending it to that of law and as a consequence economics.

Because, with the displacement of traditional agrarian morals of the church with industrial age economics as justification for all political decisions, the weaknesses in law due to supernatural nonsense were amplified by scale of polity and economy using pseudoscientific and sophomoric nonsense.

At this point the economics profession has all but suicided in its attempt to drive policy, and the culture wars have replaced both economic science and religion’s agrarian morality in some desperate search for foundations of decision making in economics, politics, and law.

And the legal profession is lacking it’s logical foundation as seriously as was the economic and the theological.

Yet this is an unnecessary failure. The founders and their english precursors were very close to a science of ethics and politics. For reasons I’ve elaborated elsewhere they did solve the problem of incentives but they left about a half dozen holes in the constitution despite being elaborated by Blackstone – who was the legal sage of the age they were all familiar with – and those holes consisted of a few presumptions of the obvious that today are not (natural, common, and concurrent voting legislation and law are simply scientific), and a few problems they simply didn’t know how to solve (truthful speech) without undermining the church’s ability to teach christian dogma myth and mysticism which they considered necessary for the ‘common people’ meaning those who were not educated lesser aristocracy.

So this is another time in my life when I see an opening for a career devoted to explaining to the public these matters in terms that they can understand -precisely because at this point we know how to fill those holes in the constitution whether presumptions or limitations of knowledge at the time.

Truth is I would find it more rewarding than the rather solitary and tedious process of producing the reforms that would fix those holes in that constitution, and fully complete the grounding of our american- anglo – germanic – early european law in a science and formal operational logic. The reason it’s more rewarding is that it’s socially and politically participatory.

Yet one cannot be done without the other. And I am one individual where my work would allow more to mater it and increase the numbers of those of us who seek to educate the people so that in their ignorance and optimism they are easily led to the serfdom and authoritarianism that will result from their natural dispositions without such knowledge, and without such defense by those few of us capable of defense of others by gift of tradition, loyalty, will, or talent or all four.

Cheers
-CD