I'm very, very glad we live in a democracy, and glad we have majority
rule, because it's so much better than alternative forms of government.
However, anyone who has studied the extensive experimental literature on
how most humans process information and make decisions realizes that the
majority is likely to be wrong on many occasions. That's a trade-off
I'm willing to accept, but we certainly need some checks on decisions of
the majority.
John
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Dan Levin
Sent: Tuesday, December 20, 2005 8:07 PM
To: [log in to unmask]
Subject: Re: Penumbras again
It is not unusual for people to complain that courts and judges
sometimes ignore the will of the majority, but I thought that a
central function of courts and judges was to do justice, and
sometimes that means saying no to the majority. My understanding is
that the reason the Constitution sometimes requires a super-majority,
such as 2/3 of the members of Congress to overturn a Presidential
veto (art I sec 7) , or 2/3 of the members of Congress or 2/3 of the
state legislatures to propose an amendment to the Const (art V) was
to recognize that majorities will sometimes have poor judgment, and
can endanger liberties, especially of minorities. (US v Carolene
Products, fn 4). The super-majority voting requirement can be a
check on the sometimes poor judgment of a majority.
Majority rule is generally, though not always, democratic and
reasonable, but in some situations there
can be a fine line between a majority and a mob.
Dan Levin
>As a person of color, I must say I am so very thankful for those
elitist
>judges who said to hell with the popular majority of Little Rock
>(represented by their elected representative, Gov. Faubus) who wanted
to
>keep an all-white high school.
>
>Of course, those elitist judges always ignore the will of the people.
Take
>those elitist judges, for example, who intervened in a case involing
the
>Florida Supreme Court interpreting Florida State Law (Bush v Gore).
>
>Then there were those elitist judges who overturned a unanimous New
Jersey
>Supreme Court interpreting a New Jersey state statute on the basis
of.... a
>highly respected and well established, expressly provided for and
cherished
>freedom.... "expressive association" (BSA v Dale). Funny thing was,
>search as I might, I just couldn't find those words in my pocket
>Constitution. See? Elitist, I say!
>
>
>_____
>Terence Lau
>Assistant Professor, Business Law
>Management and Marketing Department
>University of Dayton
>[log in to unmask]
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> To [log in to unmask]
> cc
> bcc
> Subject Re: Penumbras again
>"David W. Opderbeck" <[log in to unmask]>
>Sent by: "Academy of Legal Studies in Business (ALSB) Talk"
><[log in to unmask]>
>12/19/2005 05:10 PM
><HR><font size=-1>Please respond to
>"Academy of Legal Studies in Business (ALSB) Talk"
><[log in to unmask]></font><HR> <font size=-1></font>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>Or:
>
>Which penumbras do you prefer:
>
>(a) Those that subvert the democratic process by allowing of 5 out of 9
>unelected, unaccountable, elitist juges to overturn the will of the
people
>as reflected in laws passed by elected representatives;
>
>(b) Those invoked by our Commander-in-Chief, who is accountable to the
>political process, in the course of a war against evil terrorists who
want
>to kill us;
>
>(c) Both;
>
>(d) Neither.
>
>:-)
>
>Personally I would take any penumbra that would grade my exams for me.
>
>David W. Opderbeck
>Assistant Professor of Business Law
>Baruch College, City University of New York
>(646) 312-3602
>[log in to unmask]
>
>
>"Ingulli, Elaine" <[log in to unmask]>
>Sent by: "Academy of Legal Studies in Business (ALSB) Talk"
><[log in to unmask]>
>12/19/2005 04:49 PM
>Please respond to "Academy of Legal Studies in Business (ALSB) Talk"
>
>To: [log in to unmask]
>cc:
>bcc:
>Subject: Re: Penumbras again
>
>
>OK: here's a response:
>Which penumbras do you prefer?
>(a) Those that create and protect individual rights and freedoms
>(b) Those that trample on the above.
>(c) Both
>(d) Neither
>
>Sorry--I couldn't resist.Elaine
>
>
>-----Original Message-----
>From: Academy of Legal Studies in Business (ALSB) Talk on behalf of
Keith
>Maxwell
>Sent: Mon 12/19/2005 4:33 PM
>To: [log in to unmask]
>Cc:
>Subject: Penumbras again
>
>
>
>ALSBers:
>
>
>
>I'm taking an informal survey related to a recent current event.
>
>
>
>Which penumbra do you prefer?
>
>(a) The one Douglas found in the First Amendment
>
>(b) The one the President finds in Article II
>
>(c) Both
>
>(d) Neither
>
>
>
>ooooooooooooooooooooooooooooooooooooooooooooooooo
>Keith A. Maxwell
>Nat S. and Marian W. Rogers Professor
>Professor of Legal Studies and Ethics
>School of Business and Leadership
>University of Puget Sound
>Tacoma, WA 98416
>Office Phone: 253.879.3703
>www.ups.edu/faculty/maxwell/home.htm
>ooooooooooooooooooooooooooooooooooooooooooooooooo
>
>
>
>_____
>
>
>From: Academy of Legal Studies in Business (ALSB) Talk
>[mailto:[log in to unmask]] On Behalf Of Kenneth Schneyer
>Sent: Tuesday, December 13, 2005 7:18 AM
>To: [log in to unmask]
>Subject: Re: Penumbra metaphors
>
>
>
>Isn't the literal meaning of penumbra sufficiently metaphorical for
legal
>purposes? "A partial shadow, as in an eclipse, between regions of
complete
>shadow and complete illumination."
>
>
>
>
>
>
>
>Ken Schneyer
>
>
>
>-----Original Message-----
>From: Academy of Legal Studies in Business (ALSB) Talk
>[mailto:[log in to unmask]] On Behalf Of Keith Maxwell
>Sent: Monday, December 12, 2005 6:34 PM
>To: [log in to unmask]
>Subject: Penumbra metaphors
>
>
>
>A metaphor for "penumbra"? What about the aftertaste that lingers on
the
>palate after a sip of an excellent wine. Though originalists will
likely
>disagree, the "penumbra du vin," like its constitutional counterpart,
is
>not whimsical at all-it is a quality of the wine. If you do not like
the
>aftertaste, drink different wine. (Lest I be misunderstood, the latter
is
>NOT a metaphor for "love it or leave it", but it could be one for
Article
>V.)
>
>
>
>Keith
>
>
>
>
>
>ooooooooooooooooooooooooooooooooooooooooooooooooo
>Keith A. Maxwell
>Nat S. and Marian W. Rogers Professor
>Professor of Legal Studies and Ethics
>School of Business and Leadership
>University of Puget Sound
>Tacoma, WA 98416
>Office Phone: 253.879.3703
>www.ups.edu/faculty/maxwell/home.htm
>ooooooooooooooooooooooooooooooooooooooooooooooooo
>
>
>
>_____
>
>
>From: Academy of Legal Studies in Business (ALSB) Talk
>[mailto:[log in to unmask]] On Behalf Of Frank Cross
>Sent: Monday, December 12, 2005 7:47 AM
>To: [log in to unmask]
>Subject: Re: my point, and cakes as the Constitution
>
>
>
>
>This is not a good metaphor for originalists.
>If I'm eating a cake, I definitely want input from the international
>community. Certainly the French and Viennese. And I don't want the
same
>old exact cake, over and over again, prepared from a recipe that
permits no
>departures.
>
>
>
>At 09:39 AM 12/12/2005, David W. Opderbeck wrote:
>
>To your nose, what scent connotes sweet justice?
>
>I'm not sure, but I'll bet I could find something in the law and norms
of
>the international community that would provide some guidance.
>
>David W. Opderbeck
>Assistant Professor of Business Law
>Baruch College, City University of New York
>(646) 312-3602
>[log in to unmask]
>
>
>"Michael O'Hara" <[log in to unmask]>
>Sent by: "Academy of Legal Studies in Business (ALSB) Talk"
><[log in to unmask]>
>12/12/2005 09:08 AM CST
>Please respond to "Academy of Legal Studies in Business (ALSB) Talk"
>
>To: [log in to unmask]
>cc:
>bcc:
>Subject: Re: my point, and cakes as the Constitution
>
>
>David:
>
>I love your sense of humor, it so exhibits the overtones of an
>emanation. Clearly, the cake's penumbra would be the those tastes a
cook
>calls a shadow of a flavor (e.g., hickory flavor is strong and meringue
if
>weak). The emanations, of course, would the aromas of the cake. To
your
>nose, what scent connotes sweet justice?
>
>Michael
>
>Professor Michael J. O'Hara, J.D., Ph.D.
>Finance, Banking, & Law Department Editor, Journal of Legal
>Economics
>College of Business Administration (402) 554 - 2014 voice fax
(402)
>554 - 3825
>Roskens Hall 502 www.AAEFE.org
<http://www.aaefe.org/>
>University of Nebraska at Omaha
www.JournalOfLegalEconomics.com
><http://www.journaloflegaleconomics.com/>
>Omaha NE 68182
>[log in to unmask]
>(402) 554 - 2823 voice fax (402) 554 - 2680
>http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
>
>**********************************************************
>
>Frank Cross
>McCombs School of Business
>The University of Texas at Austin
>1 University Station B6000
>Austin, TX 78712-1178
|
