CORRESPONDENCES OF MARC SUSSELMAN PART 5
23 September 2023
MS said:
Michael,
I will try to explain the principle of stare decisis and legal precedents which you have asked LFC.
There are 50 state court systems. Each state court system has a series of trial courts, several appellate courts, and a single supreme court. There is also a federal court system, with 12 circuit courts which have jurisdiction over several states. Within each state, there are also 1 or more federal district courts. Overseeing the entire federal court system is the United States Supreme Court.
The state court systems decide lawsuits filed in the trial courts, which can then be appealed to an appellate court, and then, with permission of the state supreme court, to the state supreme court. The state courts apply the common law decisions of that state, i.e., decisions which do not apply a state statute. The state’s common law decisions, and its statutes, set forth certain legal principles, x, which act as legal axioms that under facts y, the legal result is z. If such a decision has been appealed to an appellate court, and then to the state supreme court, that legal principle x, applied to fact situation y, yields precedent z for that legal principle and that fact situation, and all other fact situations which are similar or equivalent. That is the legal precedent for that legal principle as applied to that fact situation. In all future cases involving the same or similar fact situation, the courts are governed by that legal precedent, unless and until the precedent is changed by the state’s supreme court.
The federal court system has a similar architecture, applying federal statutes and the U.S. Constitution to different factual contexts which involve federal rights under the federal statutes and the Constitution. With regard to these rights, if they are raised in a state court, the state courts are bound by the federal precedents which the federal courts have established for those rights in those factual contexts. Similarly, if a case is filed in federal court involving rights under a state’s common law or a state statute, which does occur under certain select circumstances, the federal court is bound by the case precedents of that state.
The doctrine of stare decisis and case precedents is supposed to provide stability in the law and society, so that citizens and lawyers can predict with a degree of confidence what their rights are, what the legal consequences will be for certain actions, and what the outcomes will be in court should litigation arise.
Let’s look at an example. Before Roe v. Wade was decided, whether a woman had a right to obtain an abortion was decided by the states, and was governed by the state’s common law, statutes and the state Constitution. There was no federal law governing the right to an abortion. Then, in 1973 a pregnant woman in Texas was prohibited from obtaining an abortion. She filed a lawsuit in the federal District Court in Texas, arguing that her right to an abortion was protected by the Constitution, and the State of Texas had not right to preclude her from having an abortion at the stage of her pregnancy. The Supreme Court agreed, and created the trimester protocol whereby a pregnant woman has control over her body during the first 6 months of her pregnancy, during which her right to decide for herself how to treat her body and the existence of her fetus took precedence over the fetus. However, during the last trimester, the right of the fetus to be born took precedence. This became federal constitutional law, and every state was required to abide by it. The Roe v Wade decision became precedent. No state court, and no federal court below the S. Ct., could prohibit a woman from obtaining an abortion prior to the third trimester. Then, in 2022, the composition of the S. Ct. had changed, and the State of Mississippi passed a statute restricting the right of pregnant women in Mississippi from obtaining an abortion before the third trimester. The S. Ct. reversed Roe, and held there was no constitutional right for a woman to obtain an abortion, and if and when a pregnant woman could obtain an abortion was to be decided by each state. Roe was no longer precedent.
Here's an example of how state case law can determine the outcome of a case filed in federal court. Let’s say you are involved in an automobile accident in New Jersey. If the drivers of both vehicles are residents of New Jersey, the lawsuit can only be filed in a New Jersey state court, and will be decided by New Jersey statutory and case law. If, however, one driver is a resident of New Jersey, and the other driver is a resident of Pennsylvania, the Pennsylvania driver can file suit in a Pennsylvania federal court, rather than in a New Jersey state court, under what is referred to as “diversity jurisdiction.” This is provided in the belief that the New Jersey court will favor its own citizen in applying New Jersey law. By the same token, if the New Jersey files in New Jersey state court first, the Pennsylvania driver can remove the lawsuit from the New Jersey state court to a New Jersey federal district court, in order to provide the Pennsylvania driver with a more neutral forum. In either case, however, whether the lawsuit proceeds in a Pennsylvania federal court, or a New Jersey federal court, the federal court is required to apply New Jersey case precedents in determining the liability of the respective drivers.
This is a bare bones introduction to stare decisis and case precedents. I hope it helps.
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1 October 2023
MS said:
THE TRAGEDY OF ETHAN CRUMBLEY
This is a poem without rhyme or reason.
November 30, 2021, Ethan Crumbley, 15 years old, enters Oxford High School in Oxford, Michigan.
He is carrying a 9-mm semi-automatic handgun, purchased by his parents as a Christmas present.
He proceeds down the school’s hallways, enters several classrooms, and opens fire, killing four students, ranging in age from 14 to 17.
During September, 2023, a Miller hearing is conducted to determine whether Ethan can be sentenced to life in prison without parole.
His attorneys offer evidence of Ethan’s troubled upbringing – his parents frequently left him alone at home, while they went bar-hopping.
He entertained himself watching horror movies and playing Call of Duty.
He videotaped himself torturing animals.
He made Molotov cocktails.
He drew sketches of himself committing mass murders.
He placed a jar containing a baby bird’s head in a school bathroom.
His parents, aware of these episodes, never sought therapy for him.
They take him to a firing range, to practice – a family hobby.
A teacher expresses concern to Mrs. Crumbley that Ethan was caught in class searching on line for ammunition.
Mrs. Crumbley texts her son, “LOL I’m not mad at you. You have to learn not to get caught.”
A teacher finds a drawing on Ethan’s desk of a semiautomatic handgun, pointing to the words, “The thoughts won’t stop. Help me.”
Alarmed, school officials call the parents in for a conference, and show them the drawing, and instruct them to seek counseling for Ethan within 48 hours.
The parents resist the idea of counseling, and do not inform school authorities that they recently purchased a handgun as his Christmas present.
His parents leave his Christmas present in an unlocked drawer in their bedroom.
That day, at 12;50 P.M., Ethan commits mass murder.
His parents are charged with manslaughter.
On September 29, 2023, the judge issues his ruling;
“[I]t is clear to this court that the defendant had an obsession with violence before the shooting.
“The prosecution has rebutted the presumption, by clear and convincing evidence, that a sentence to life without parole is a disproportionate sentence.”
Ethan, at the age of 17, is deemed irredeemable.
He will live the rest of his life in prison.
Legal briefs are written by fools like me, but only a judge can reach such a fair decree.
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3 October 2023
MS wrote:
There is an interesting story in today’s NYT regarding freedom of speech and academic freedom relating to comments made by Philosophy Professor Stephen Kershnar, who has been banned from the campus due to remarks he made about consensual sex between adults and minors. You can read the article at the link below.
"New York Times article..."
Your thoughts?
P.S.: This would make for an interesting discussion on Prof. Wolff’s blog.
Michael Llenos wrote:
Professor Kershnar said that a consensual sexual act with a 12 year old girl could be a mistake instead of a wrong. I personally believe that it is gravely wrong and a grave sin against minors & society as a whole. I don't care who you are, but sex with a minor is deadly wrong. My first philosophy professor or Dr. Jim West, a Jewish gentleman of Leeward Community College, believed that pedophiles should each have their penis cut off. I did agree with him then & still do. I realize that many will say St. Augustine was once married to a 12 year girl and ancient Greeks and Romans had sex with their young slaves blah, blah, blah, blah. But I believe that just as it is wrong now that it was also wrong back then. I believe democratic consensus and historical examples do not make it a correct form of behavior. I wrote more about this in my Symposium dialogue that one can download from Amazon, and I put a link to it on my website called: Two Modern Dialogues based on Plato.
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9 October 2023
MS wrote:
A mother’s plea:
"https://www.cnn.com/videos/world/2023/10/09/missing-daughter-mayzel-plea-hostage-israel-hamas-vpx.cnn"
Will the Palestinians listen? No, they will not, because they are barbarians, who only know tit for tat - you took our land, given to us by Allah, and we want it back.
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MS wrote:
Prof. Wolff keeps saying that his only ethical precept is to decide which side he is on. By what calculus he determines which side he is on, he is unable to explain, other than that he knows the side he chooses is the “right” side.
So, what side is he on now? The side of regimes which persecute homosexuals? The side of regimes which torture women who fail to cover their hair with a hijab? The side of regimes which imprison people who express what side they are on? Or on the side of Israel, where homosexuals are free to live without being persecuted, where women can wear whatever they please, and where freedom of speech – even speech by Israelis who oppose their government – is protected and not retaliated against with imprisonment.
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MS wrote:
More liberal bullshit from Profs. Wolff and Zimmerman.
They ignore the history of the Holocaust and the partition plan approved by the UN in 1947 which the Jews accepted, but the Arabs rejected, and the numerous efforts by Israel to reach peace with the Palestinians in 1994, 2000, 2008, 2019, and 2020 – all rejected by the Palestinians.
At the Camp David accord in 2000, Prime Minister Ehud Barak offered a peace treaty to Yasser Arafat which conceded virtually every demand being made by the Palestinians, with one exception, the right of return, which would have resulted in 5.6 million Palestinians becoming Israeli citizens, destroying Israel as a Jewish state – the only Jewish state in the world, in which there are 46 Arab/Muslim nations. Arafat turned it down, concerned that he would be assassinated like Sadat if he accepted peace.
The West Bank was occupied in the 1967 war, in which four Arab states attacked Israel, vowing to drive the Jews into the sea. They failed, and since then every effort by Israel to reach a peace treaty with the Palestinians and provide them with an independent state and end the occupation has failed. Why? Because the Palestinians do not really want peace. They have not given up their dream of driving the Jews into the sea and reoccupying all of Palestine, as they did during the Crusades. Under Islam, once a territory has been occupied by Muslims, it remains forever Muslim territory. The Hamas Charter expressly states that it is committed to the destruction of the State of Israel.
Gaza is under a blockade because it has been used as a launching stage for rocket attacks against Israel. Rather than using the millions of dollars Gaza has received from the World Bank and Iran to build schools, hospitals, businesses, they use the money to build tunnels to invade Israel and launch rockets into Israel. The people in Gaza elected Hamas to represent them in 2006, rather than Fatah. They have no one to blame for the destruction which Hamas has brought on them other than themselves. In 2005, when Israel gave up its occupation of Gaza, it left greenhouses with fruit and vegetables which the people of Gaza could have used t feed themselves. Rather than accept food from Jews, they destroyed the greenhouses. Hamas’ barbaric slaughter of Israeli citizens this past week-end requires retaliation – and I no longer care if Palestinians die by the thousands. Liberals, shed your tears over the Palestinian butchers!
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Michael wrote:
For a parallel perspective on a peaceful solution to the Palestinian-Israeli Conflict, watch this scene from the days of Ancient Roman History:
"Video Link: The Fall of the Roman Empire: Senate scene: Analogous to Marcus Cicero and Seneca the Younger pleading for War or Peace towards the Palestinians from the Israeli perspective"
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10 October 2023
MS said:
I watched the video recommended by Jerry Fresia of Greek Finance Minister Yanis Varofoukis. Mr. Varofoukis’s analysis is flawed by a central mischaracterization. He says that he will never condemn the attack by Hamas because their conduct is justified by the claim that Israel is an apartheid state, and an apartheid state does not deserve to survive. He proceeds to compare Israel to South Africa when South Africa was an apartheid state. There lies the flaw. The Blacks who were being oppressed by the Afrikans administration were the indigenous population, and, moreover, did not threaten to destroy the South African government if apartheid was removed. Both Jews and Arabs are indigenous to Palestine. Even after the Roman expulsion, Jews continued to live in Palestine for centuries – when there were no Arabs. The Muslim Arabs arrived after the founding of Islam, and invaded Palestine, when Jews were living there. Moreover, Hamas has pledged itself to the destruction of Israel, It is stated in its charter. They do not want peace with Israel, They want its annihilation. In addition, unlike in apartheid South Africa, there are Palestinians in the Israeli government. There are five Palestinians in the Israeli Knesset. Moreover, in order to reach a peace accord with any adversary, the adversary has to agree that once the accord is reached, there will be an end to hostilities. The PLO has never agreed to make this commitment. Given what Hamas has done in Gaza since Israel evacuated its military from Gaza, and given PLO’s refusal to commit to an end to hostilities, why should Israel trust that the PLO will not do what Hamas is doing if Israel withdraws from the West Bank?
********
Michael wrote:
I remember Yasser Arafat who was leader of the PLO
in the 1990s. He was a saint compared to Hamas.
Or am I mistaken?
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MS wrote:
ANTI-SEMITISM AND INSANITY IN THE FEDERAL COURTS
Marc Susselman, J.D., M.P.H.
Signs in front of a synagogue, in Ann Arbor, Michigan.
They state, “Resist Jewish Power”; “Jewish Power Corrupts”; “No More Holocaust Movies”
The signs, testaments to anti-Semitism, appear every Saturday morning, as the congregants, with their children, enter their house of worship to pray.
The signs have been displayed every Saturday morning, since 2003, and continue to be displayed every Saturday morning, even in 2023.
Jewish worshippers, entering the synagogue with their children, cannot avoid seeing the signs.
They are a captive audience.
The flag of Israel, also placed directly in front of the synagogue, with the Star of David, the symbol of the Jewish people, encircled in red, bisected by a red slash, meaning “Prohibited.”
Mingled with the anti-Semitic signs are other signs, denouncing Israel, signs which state: “Stop Funding Israel”; “End The Palestinian holocaust”; “Boycott Israel”; “Fake News – Israel Is A Democracy”; “Israel Attacked America – 9/11/2001.”
Who places these signs there?
A group of protesters, some of whom have publicly denied the Holocaust occurred.
Two members of the synagogue, one of whom is a Holocaust survivor, file a lawsuit in a federal court in Detroit.
What do they request?
They request that the court place restrictions on how close to the synagogue the signs may be placed; during what time periods the signs may be displayed; and how many may be used at one time.
They assert that seeing the signs as they enter their sanctuary to pray, a right guaranteed to them by the First Amendment, causes them extreme emotional distress.
What does the court do?
Does it take their grievance seriously, and arrange for a hearing?
No, it dismisses the lawsuit, asserting that the plaintiffs’ emotional distress is not a “concrete” injury, and therefore they do not have “standing” to sue.
The Jewish plaintiffs file an appeal in the Sixth Circuit Court of Appeals in Cincinnati.
The Sixth Circuit rules that their emotional distress is a concrete injury, recognized as such in thousands of cases, and therefore the plaintiffs do have standing to sue.
It proceeds to hold, however, that the signs – all of the signs, even the anti-Semitic signs - are impregnably protected by the First Amendment.
No injunction of any kind, placing any restrictions on the use of the signs, may be issued.
The plaintiffs seek help from the Supreme Court.
They file a petition for certiorari.
They argue that hate speech in proximity to a house of worship, any house of worship, of any religion, is not, should not be, protected by the First Amendment.
Would signs used by the Ku Klux Klan in front of an African-American church using the N-word be protected by the First Amendment, they ask.
What does the Supreme Court say?
It says, “Petition denied.”
The anti-Semitic, Holocaust denying protesters then file a motion requesting that their lawyers be awarded attorney fees.
They claim that the lawsuit was “frivolous.”
The judge – the same judge who ruled that the Jewish plaintiffs’ emotional distress was not a concrete injury – agrees that the lawsuit was frivolous.
She awards the protesters’ attorneys attorney fees in the amount of $158,721.75.
She orders that the $158,721.75 must be paid by both of the Jewish plaintiffs, as well as their Jewish attorney.
An 87-year old Holocaust survivor is ordered to pay $158,721.75 to a group of anti-Semitic Holocaust deniers.
They appeal again to the Sixth Circuit Court of Appeals.
Will the Sixth Circuit reverse this insanity?
No it will not. It issues an Order affirming the attorney fee award.
The plaintiffs once more file a petition seeking relief from the Supreme Court.
They argue that the lawsuit was not “frivolous.”
That awarding attorney fees in a case such as this will only inhibit other citizens from seeking to protect their rights.
That it will chill advocacy by other well-intentioned attorneys.
Does the Supreme Court listen?
No, it does not, it issues an Order on October 2, 2023: “Petition denied.’
During the four years that the case was in the courts, the Supreme Court rules that the City of Boston violated the Constitutional rights of a Christian organization by denying its request to fly a Christian flag from a flagpole in front of the Boston City Hall.
It rules that a public school district violated the religious rights of a high school football coach by prohibiting him from reciting a religious prayer on the 50-yard line after every football game.
It rules that the State of Colorado violated the free speech rights of a Christian wedding announcement designer by ordering her to design wedding announcements for gay couples.
All of these Americans have rights protected by the Constitution, the Supreme Court states.
But the right of Jews to enter their house of worship without being insulted and verbally spat upon, according to the federal courts, is not protected by the Constitution.
On October 7, 2023, members of the terrorist organization Hamas invade Israel, and indiscriminately kill Israeli men, women and children.
Perhaps they were inspired by the commitment of the U.S. government and its courts to protect Jews.
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The End.