WEBVTT - What's so important about legal precedent? 0:00:01.440 --> 0:00:04.240 Welcome to Stuff You Should Know, a production of I 0:00:04.360 --> 0:00:13.200 Heart Radio. Hey, and welcome to the podcast. I'm Josh, 0:00:13.200 --> 0:00:16.520 and there's Chuck and Jerry's here too, and this is 0:00:16.600 --> 0:00:20.239 stuff you should know. And boy do we mean it. 0:00:20.360 --> 0:00:23.079 This is stuff you should know. Even though I have 0:00:23.160 --> 0:00:26.240 to admit, Chuck, I don't think I've ever gotten sleepier 0:00:26.840 --> 0:00:29.760 than I was when I was researching this this episode. 0:00:31.160 --> 0:00:34.400 You know, I've learned more about the law since we 0:00:34.520 --> 0:00:38.159 got this job than I ever wanted to or intended 0:00:38.200 --> 0:00:42.280 to write. Uh, some of like, you know, just because 0:00:42.280 --> 0:00:44.159 we have work contracts for the first time. So some 0:00:44.240 --> 0:00:47.239 of it's because of that, some of it because of 0:00:47.240 --> 0:00:49.720 all the trouble we get in, all the trouble we've 0:00:49.720 --> 0:00:53.159 gotten in over the years. And then we just kind 0:00:53.159 --> 0:00:57.320 of covered a lot of stuff legally speaking. And it's 0:00:57.360 --> 0:01:01.200 interesting the law it is it is. And this one 0:01:01.360 --> 0:01:04.400 was like it was kind of tough because Olivia helped 0:01:04.440 --> 0:01:07.440 us out with this, and it was like it's a 0:01:07.600 --> 0:01:12.000 really unless you're in the legal profession one way or another, 0:01:13.000 --> 0:01:17.880 Like it's really dry, like incredibly dry. But if you 0:01:17.920 --> 0:01:22.920 can just chip past that crusty dryness, and it takes 0:01:22.920 --> 0:01:25.399 a lot, Yeah, it gets a little moisture the further 0:01:25.440 --> 0:01:27.160 you get in, But finally you get to the rich 0:01:27.240 --> 0:01:31.240 new Gute center and there you realize, WHOA, this is 0:01:31.280 --> 0:01:35.520 actually super important because what we're talking about legal precedents 0:01:35.600 --> 0:01:39.160 um kind of guides our society and a lot of 0:01:39.319 --> 0:01:41.840 a lot of ways beyond just this is law. This 0:01:41.920 --> 0:01:44.560 is not law, UM, this is illegal. You can do 0:01:44.600 --> 0:01:48.520 this like that. We actually organize our lives in surprising 0:01:48.520 --> 0:01:52.120 ways according to what's legal and what's not. And as 0:01:52.280 --> 0:01:55.120 if the law is steady and stable, which is the 0:01:55.160 --> 0:01:58.120 point of you know, relying on legal precedence, as we'll find, 0:01:58.440 --> 0:02:00.840 then you know, society and he can kind of grow 0:02:00.880 --> 0:02:03.160 and experiment and try new things because the law part 0:02:03.280 --> 0:02:05.880 is covered. But if the law is going to change 0:02:05.920 --> 0:02:09.640 every couple of years, it makes it really hard to um, 0:02:09.720 --> 0:02:13.320 be in a gay marriage, or start a business or 0:02:13.520 --> 0:02:16.880 invest in a like kind of a risky new technology, 0:02:16.919 --> 0:02:19.720 because there's you can't rely on the law being stable. 0:02:19.760 --> 0:02:22.840 So it makes life for us unstable. And I didn't 0:02:22.840 --> 0:02:26.560 really realize just how much of a just an effect 0:02:26.639 --> 0:02:29.360 that that law has, like an unseen effect on just 0:02:29.400 --> 0:02:31.360 our day to day lives, because you don't think about 0:02:31.400 --> 0:02:34.160 that kind of thing. But until you start researching something 0:02:34.200 --> 0:02:37.880 like this, right, and or until you get slapped with 0:02:37.919 --> 0:02:41.120 that lawsuit, and all of a sudden you're like, what, uh, 0:02:41.280 --> 0:02:48.720 so much about the law too, is uh attorney's love words? Yes? Um, 0:02:48.840 --> 0:02:51.200 that the simple I mean, anyone who's ever even if 0:02:51.200 --> 0:02:54.679 you've never dealt with an attorney, great congratulations. I'm not 0:02:54.680 --> 0:02:57.000 saying attorneys are bad, but that means you, you know, 0:02:57.400 --> 0:03:00.840 you have a blissfully simplistic way of living that is 0:03:01.240 --> 0:03:04.560 to be admired. But uh, you've probably clicked on in 0:03:04.680 --> 0:03:07.560 terms of service or something, and you know that's all 0:03:07.639 --> 0:03:11.680 legal words. It's all legal wording, like those you know, 0:03:12.040 --> 0:03:14.799 nine hundred thousand words to sign up for a website 0:03:14.880 --> 0:03:18.440 or whatever, or to download an app. Those are words 0:03:18.560 --> 0:03:23.200 written by attorneys. And so much of law is so 0:03:23.320 --> 0:03:29.000 specific to it can hinge on the wrong couple of 0:03:29.000 --> 0:03:34.320 words that a well meaning jurists typed up in their decision. 0:03:34.440 --> 0:03:36.400 Just a couple of things can really change things. A 0:03:36.400 --> 0:03:39.960 couple of words, because it's all about those words and 0:03:40.000 --> 0:03:44.200 how those words are interpreted by others. And um, I 0:03:44.200 --> 0:03:46.040 just I don't know that part about it. I find 0:03:46.080 --> 0:03:49.400 pretty fascinating and I think every attorney I know really 0:03:49.520 --> 0:03:55.560 like UM values words. Let's just say that, and not like, 0:03:55.600 --> 0:03:57.720 oh because it could charge to it. I mean, you know, 0:03:57.760 --> 0:04:00.520 they value like boy, you better be careful about how 0:04:00.560 --> 0:04:03.280 you say something. You know. Yeah, it's true, which really 0:04:03.320 --> 0:04:06.760 doesn't jibe with me because I'm pretty hyperbolic, and I 0:04:06.840 --> 0:04:09.920 just assume everybody's going to understand that I'm being hyperbolic. 0:04:10.000 --> 0:04:13.200 But that's not always the case. Especially, I guess now 0:04:13.400 --> 0:04:15.200 that I think about it, it's when I'm talking to 0:04:15.360 --> 0:04:19.360 lawyers that it really gets lost. Uh. So I guess 0:04:19.400 --> 0:04:24.400 we should go back to the early eleven hundreds, uh, 0:04:24.440 --> 0:04:29.080 specifically eleven fifty four, when Henry the second Um kind 0:04:29.080 --> 0:04:32.320 of codified the fact that they were going to be 0:04:32.360 --> 0:04:35.200 in England was going to be working on something called 0:04:35.279 --> 0:04:38.360 common law, or at least towards something called common law, 0:04:38.400 --> 0:04:41.120 because you'll see, it takes precedent and common law and 0:04:41.200 --> 0:04:43.040 this kind of thing takes a long time to really 0:04:43.040 --> 0:04:46.000 take hold, uh for a lot of reasons we'll get to. 0:04:46.120 --> 0:04:49.839 But it was common law because they said, hey, right now, 0:04:49.880 --> 0:04:54.239 we're deciding these cases all over the land and everyone 0:04:54.279 --> 0:04:56.200 has their own opinion, and it's a bit of a mess. 0:04:56.240 --> 0:04:59.400 So maybe if we had one sort of common law 0:04:59.480 --> 0:05:02.919 for all the kingdom and there were you know, we 0:05:02.920 --> 0:05:05.880 could refer to that law and these decisions to make 0:05:06.440 --> 0:05:09.279 decisions on down the line, that might be a pretty 0:05:09.320 --> 0:05:12.520 smart thing. And it was and it is yeah, because 0:05:12.520 --> 0:05:14.720 I mean the stuff that they were doing locally was like, 0:05:14.760 --> 0:05:17.279 if you couldn't tell the truth between you know, a 0:05:17.320 --> 0:05:20.320 plane iff and a defendant, you had them both snatch 0:05:20.360 --> 0:05:23.360 a rock out of a pot of boiling water. I'm 0:05:23.360 --> 0:05:27.200 not kidding, and then whoever whoever healed fastest was telling 0:05:27.200 --> 0:05:30.200 the truth, and then you would execute the one who 0:05:30.240 --> 0:05:33.240 healed slower. Like that was the kind of legal stuff 0:05:33.279 --> 0:05:35.719 you would face like at this time. So Henry the 0:05:35.760 --> 0:05:38.120 second the idea that he came up with common law 0:05:38.120 --> 0:05:39.839 and said, all this is nuts, We're just gonna have 0:05:39.880 --> 0:05:42.720 one law for all of England. Um. It was really 0:05:42.760 --> 0:05:45.479 forward thinking. And when you dig into it a little more, 0:05:45.560 --> 0:05:49.320 he established trial by jury um the concept of circuit 0:05:49.400 --> 0:05:53.720 courts um. That that comes from this time when judges 0:05:53.760 --> 0:05:57.000 would travel around and and go to like different localities 0:05:57.040 --> 0:05:59.719 to hear cases, and the fact that they weren't rooted 0:05:59.720 --> 0:06:04.120 to one specific locale meant that that was much more 0:06:04.160 --> 0:06:07.000 difficult to corrupt them. There's a lot of really forward 0:06:07.000 --> 0:06:10.520 thinking stuff and the basis of it, Chuck. The common 0:06:10.600 --> 0:06:14.200 law formed the foundation of not just England's law, but 0:06:14.240 --> 0:06:18.159 basically every country that was colonized by England, including the 0:06:18.279 --> 0:06:22.840 United States. We have a common law system, which is um, 0:06:24.040 --> 0:06:25.919 I don't want to see the opposite, but it's the 0:06:26.320 --> 0:06:30.120 It's one of two basic ways that you can conduct 0:06:30.120 --> 0:06:33.520 your society legally, and the other one is civil law. Right, 0:06:33.960 --> 0:06:36.480 even though Henry the Second was still like it's still 0:06:36.480 --> 0:06:40.159 like to bob for apples and bats of acid because 0:06:40.200 --> 0:06:44.279 that's just fun. Sure, Yes, civil law is not the 0:06:44.320 --> 0:06:47.400 way we went Um. That was you know, it was 0:06:47.480 --> 0:06:50.440 kind of developed around the same time and Europe back 0:06:50.480 --> 0:06:53.359 in the day. But that's uh. Common law was the 0:06:53.400 --> 0:06:56.360 smarter approach. And what we got out, what we realized 0:06:56.400 --> 0:06:59.200 early on with common laws was what we needed to 0:06:59.240 --> 0:07:01.640 adhereby was a principle that you've heard a lot kind 0:07:01.640 --> 0:07:05.120 of lately. It's a Latin term meaning let the decision stand, 0:07:05.680 --> 0:07:10.920 uh star a decisive right. And that's that big deal. Yeah, 0:07:10.960 --> 0:07:13.560 And that's I mean, it's not like Henry the Second 0:07:13.600 --> 0:07:15.600 came up with common law, and said and also it's 0:07:15.680 --> 0:07:17.559 it's going to be based on this concept of starry 0:07:17.600 --> 0:07:21.720 decisives that actually evolved over time. And the idea behind 0:07:21.760 --> 0:07:26.840 starry decisives is if there's a good decision made by 0:07:26.600 --> 0:07:32.480 a judge, um, then later judgments about cases that have 0:07:32.920 --> 0:07:36.360 some similarities are a lot in common with that case 0:07:36.480 --> 0:07:39.480 that the original decision was made on have to follow 0:07:39.560 --> 0:07:44.239 that same precedent. It's a legal kid necessarily say again, 0:07:44.520 --> 0:07:46.760 I don't even know that I would agree that it's 0:07:46.880 --> 0:07:50.440 based on a good decision, because originally it was like 0:07:50.480 --> 0:07:53.360 they even said it was as long as it wasn't 0:07:53.400 --> 0:07:57.440 flatly absurd or unjust. And they have said later on 0:07:57.600 --> 0:08:00.120 that like and well we'll get to it. But know, 0:08:00.760 --> 0:08:04.640 the decisions don't have to be perfect, right right, the 0:08:04.960 --> 0:08:07.360 I guess what I meant by good was good meaning 0:08:07.440 --> 0:08:11.320 like not like the judge wasn't wearing a tinfoil hat 0:08:11.400 --> 0:08:13.600 and sentenced the person to like eat their own poop. 0:08:13.840 --> 0:08:17.600 I mean good like they like, it was reasonable, it 0:08:17.680 --> 0:08:20.400 was thought out, it was you know, deliberative, like it 0:08:20.440 --> 0:08:23.880 was a sound judicial opinion, whether it actually was good 0:08:23.960 --> 0:08:28.480 or not. Right, Okay, I'll buy that. But here's the deal. 0:08:28.520 --> 0:08:31.840 Like I said earlier, like applying common law and applying 0:08:31.880 --> 0:08:35.079 precedent is something that takes a long long time because 0:08:35.200 --> 0:08:37.200 early on, I mean for a lot of reasons, but 0:08:37.240 --> 0:08:39.720 one of the main reasons is early on the courts 0:08:39.720 --> 0:08:43.240 were such a mess. They didn't even start recording, really, 0:08:43.880 --> 0:08:48.000 um their decisions in a really meaningful way until like 0:08:48.480 --> 0:08:51.800 the mid eighteen hundreds in England the early eighteen hundreds 0:08:51.800 --> 0:08:54.320 in the US, so they may not have even known 0:08:54.400 --> 0:08:57.160 there might have been precedent in any given case. But 0:08:57.360 --> 0:09:00.600 starting like I said, early eighteen hundreds, in mid eight 0:09:00.800 --> 0:09:03.800 hundreds in England, we started to have a real sort 0:09:03.840 --> 0:09:08.160 of president. Yes, I guess, yeah for sure. And we 0:09:08.200 --> 0:09:10.760 talked about that in our Unsung Heroes of the Court, 0:09:10.840 --> 0:09:15.040 with our I think our transcriptionist segment, right, I think so, 0:09:15.480 --> 0:09:18.520 I think so too. But the reason that, um, that 0:09:18.600 --> 0:09:21.720 you have this this emphasis on precedence is because in 0:09:21.760 --> 0:09:26.280 a common law system, law kind of builds on judgment 0:09:26.320 --> 0:09:28.800 after judgment, and the more judgments you have about like 0:09:28.840 --> 0:09:33.199 a particular um the topic or or you know, case 0:09:33.320 --> 0:09:37.880 or something, the more well rounded and in robust the 0:09:38.000 --> 0:09:42.160 idea of the law concerning that goes. Like in a 0:09:42.280 --> 0:09:46.560 civil or in a common law society, the legislature makes 0:09:46.559 --> 0:09:49.200 a law, but it's not you know, they don't try 0:09:49.200 --> 0:09:52.720 to lay out every single law with every single possible 0:09:52.760 --> 0:09:54.880 outcome that they can think of. That's what civil law 0:09:54.960 --> 0:09:57.520 is based on. In common law, it's like they lay 0:09:57.559 --> 0:09:59.520 it out, it kind of makes sense, it's open to 0:09:59.640 --> 0:10:01.960 interpret cation. And then people start suing each other, and 0:10:02.000 --> 0:10:04.040 then over the years the judges figure it out. But 0:10:04.080 --> 0:10:07.800 they figured it out by basing their assumptions on the 0:10:07.880 --> 0:10:13.040 previous rulings of other judges. Right, that sounds like a 0:10:13.080 --> 0:10:15.600 good breaking point. I think so too. I'm at my 0:10:15.679 --> 0:10:19.719 breaking point. No, not already. Ye, all right, Josh is 0:10:19.760 --> 0:10:22.120 out in the first third, but we'll press on and 0:10:22.280 --> 0:10:24.040 we'll talk about the U S system right after this 0:10:37.840 --> 0:10:56.200 stopt Alright, so Josh is gone, everybody, I'm gonna do 0:10:56.280 --> 0:10:59.079 the rest of this one solo. So we're just gonna 0:10:59.120 --> 0:11:05.480 talk talk about car tunes and breakfast cereals. Josh, I'm 0:11:05.520 --> 0:11:08.760 back up. I couldn't leave you, Chuck. Uh. So, if 0:11:08.800 --> 0:11:11.160 we're gonna talk about the the U S system, as 0:11:11.160 --> 0:11:13.040 far as legal precedent goes, we need to talk a 0:11:13.080 --> 0:11:17.080 little bit obviously about the constitution. Uh, the Constitution of 0:11:17.120 --> 0:11:20.520 the US doesn't really talk a lot about how the 0:11:20.520 --> 0:11:23.880 court system should operate. Uh, they don't talk about precedent. 0:11:24.000 --> 0:11:27.760 This is something that the United States. Uh you know, 0:11:28.160 --> 0:11:30.440 it goes from the top down here in the US, 0:11:30.520 --> 0:11:33.640 and we'll talk about it gets really confusing at some 0:11:33.679 --> 0:11:36.600 point as far as which courts bind with other courts 0:11:36.600 --> 0:11:40.000 so that that mess will follow. But it goes top down. 0:11:40.040 --> 0:11:44.600 So the Supreme Court is is really what ultimately matters 0:11:44.640 --> 0:11:47.480 and what they decide about the really important cases because 0:11:47.679 --> 0:11:52.200 everything binds upwards to them. But they didn't really like 0:11:52.720 --> 0:11:54.560 they kind of made it up as they went. And 0:11:54.600 --> 0:11:57.400 that's not to like knock the Supreme Court. It just 0:11:57.679 --> 0:11:59.800 is to say there weren't any real rules in place 0:12:00.320 --> 0:12:02.800 as far as this goes. But they realize early on, 0:12:03.360 --> 0:12:05.120 and I think in nineteen thirty two is when it 0:12:05.160 --> 0:12:10.079 really became serious when a justice named Lewis Brandeis of 0:12:10.160 --> 0:12:15.520 Brandeis University fame. Oh yeah, yeah, of course, I wrote 0:12:15.520 --> 0:12:19.160 in a descent in a case Burnett versus UH Coronado 0:12:19.440 --> 0:12:25.040 Oil and Gas Company, UM, basically laid out what started 0:12:25.080 --> 0:12:28.080 to decisive is all about for everyone to look back 0:12:28.160 --> 0:12:31.360 on from then on and they have when he wrote, 0:12:31.400 --> 0:12:34.720 in most matters, it is more important that the applicable 0:12:34.800 --> 0:12:37.720 rule of law be settled than it be settled, right, 0:12:39.360 --> 0:12:41.560 And that was what I was kind of referring to earlier. 0:12:41.600 --> 0:12:45.680 He's he's basically basically saying, listen, courts aren't perfect, laws 0:12:45.679 --> 0:12:49.720 aren't perfect. But what's really important, unless it's a really terrible, 0:12:49.840 --> 0:12:53.360 terrible decision, is that we kind of come together and 0:12:53.400 --> 0:12:56.440 agree that this is how it is. Uh. And then 0:12:56.480 --> 0:13:00.079 he went on to kind of say, ultimately, like it, 0:13:00.320 --> 0:13:04.040 you can't overturn precedent if it is really really bad. Yeah, 0:13:04.080 --> 0:13:07.800 because if you didn't, if you just blindly followed precedent, 0:13:07.920 --> 0:13:11.080 then you have the potential for a bad judgment, a 0:13:11.080 --> 0:13:16.160 bad decision, infecting your society and your legal system. And 0:13:16.200 --> 0:13:18.160 if you just have to follow it blindly even though 0:13:18.160 --> 0:13:21.080 it's a really bad ruling, that's not good. So you 0:13:21.120 --> 0:13:25.120 need to have an outlet to overturn those bad decisions. 0:13:25.760 --> 0:13:28.240 But what Brandis was saying is, for the most part, 0:13:28.320 --> 0:13:30.400 you want to just leave it alone. If it's even 0:13:30.520 --> 0:13:34.480 remotely good, leave it alone. Let it But yeah, and 0:13:34.520 --> 0:13:37.120 that's really to me. If you like middle of the 0:13:37.200 --> 0:13:41.160 road stuff, started to cease. This is exactly what you want, 0:13:41.280 --> 0:13:44.959 because it's like it's the it's the full crum between 0:13:45.800 --> 0:13:48.760 going one direction where you just have like a whiplash 0:13:48.800 --> 0:13:51.200 going on because law is changing all the time, and 0:13:51.240 --> 0:13:53.960 then the other direction on the other end of the spectrum, 0:13:53.960 --> 0:13:56.800 where the law just does not change, it is just 0:13:56.960 --> 0:14:00.600 set in stone. And that's that. This is like, Okay, 0:14:00.640 --> 0:14:03.000 you want to follow tradition, you want to observe custom 0:14:03.080 --> 0:14:05.400 to have some stability, but at the same time, you 0:14:05.440 --> 0:14:08.280 want to be able to let society evolve by having 0:14:08.520 --> 0:14:12.720 the laws evolve as new ideas and concepts come around. Yeah, 0:14:12.760 --> 0:14:15.160 it's it reminds me of one of my favorite I'm 0:14:15.160 --> 0:14:17.920 not a big axiom guy, but there's a handful that 0:14:17.960 --> 0:14:21.120 I really kind of informed my way of thinking, and 0:14:21.440 --> 0:14:23.840 one is don't let perfect be the enemy of good. 0:14:24.600 --> 0:14:28.359 That's that's always been as a sort of an underachiever 0:14:28.440 --> 0:14:31.920 in life. It's always been one I really stood on, 0:14:32.080 --> 0:14:34.240 And that's kind of what they're saying here. It's like, listen, 0:14:35.000 --> 0:14:37.600 if we go for perfect, you're just gonna because law 0:14:37.640 --> 0:14:41.200 is subjective to like, these justices are deciding things based 0:14:41.240 --> 0:14:44.120 on what they think, based on other things. But ultimately 0:14:44.120 --> 0:14:47.120 it's the subjective thing. So we can't just go back 0:14:47.120 --> 0:14:50.840 and forth forever trying to get a perfect ruling on something. Right, 0:14:51.600 --> 0:14:54.080 My favorite axiom is it has to be perfect or 0:14:54.080 --> 0:14:59.000 else I'm a completely useless human. Oh no, oh yes, 0:15:00.120 --> 0:15:04.840 So over time that concept of starry decisive when when 0:15:04.920 --> 0:15:07.760 was it? It was like the I guess ninety two 0:15:07.760 --> 0:15:10.040 with brand Ice. Yeah, that's when he kind of laid 0:15:10.040 --> 0:15:12.440 the gauntlet down, and think about how meta that is. 0:15:12.480 --> 0:15:18.000 He was establishing precedent about when to follow or overturned precedent. 0:15:18.960 --> 0:15:24.280 Pretty amazing stuff that guy deserves, like a sure university 0:15:24.360 --> 0:15:27.600 named after there's a statue there, but over there better 0:15:27.640 --> 0:15:31.640 be um. But over time, after brand Ice, you know, 0:15:31.720 --> 0:15:34.160 said that, they were like, okay, well you know exactly 0:15:34.160 --> 0:15:37.240 when is it okay to overturn the decision? And they've 0:15:37.240 --> 0:15:40.440 actually come up with a handful of kind of guiding 0:15:40.520 --> 0:15:44.280 bullet points that are appropriately laid out in bullet points 0:15:44.280 --> 0:15:47.560 for us UM that just kind of say like, okay, 0:15:47.600 --> 0:15:49.520 does it check this box? Is check that box? And 0:15:49.560 --> 0:15:53.200 it's not like a perfect Scantron sheet where everything every 0:15:53.200 --> 0:15:55.120 box is going to be filled out and you calculate 0:15:55.160 --> 0:15:57.120 them all and you say, yes, it should be overturned. Like, 0:15:57.160 --> 0:16:00.200 there's still a lot of subjectivity and weighing all of 0:16:00.240 --> 0:16:05.480 this stuff, but it's pretty good guideline if you ask me, no, absolutely. Um. Well, 0:16:05.520 --> 0:16:07.720 the first thing, and this is a little bit counterintuitive, 0:16:07.800 --> 0:16:13.640 but it's easier to overturn a decision based on the 0:16:13.680 --> 0:16:18.880 Constitution than it is a statutory law. And again that 0:16:18.920 --> 0:16:23.400 seems counterintuitive because the Constitution can feel so locked in. 0:16:23.480 --> 0:16:25.920 But basically what that means is is if it's just 0:16:25.960 --> 0:16:28.360 statutory law, then you can change the law pretty easily. 0:16:28.720 --> 0:16:31.680 Like the Constitution is very hard to get changed. So 0:16:31.760 --> 0:16:34.479 it's easier to change a decision based on the Constitution 0:16:34.720 --> 0:16:39.080 than the actual underlying constitution. Yeah, because Congress is going 0:16:39.200 --> 0:16:41.720 to say, oh, yeah, we we we miss that one. 0:16:42.200 --> 0:16:46.400 And then similarly to Congress can actually create laws to 0:16:46.600 --> 0:16:51.960 overturn unpopular judicial rulings. Um, So they can make a 0:16:52.000 --> 0:16:54.400 law that, you know, if everybody's really mad about, say 0:16:54.520 --> 0:16:58.440 some judicial ruling, and Congress says, you know, our constituents 0:16:58.440 --> 0:16:59.800 are really up in arms, let's make a law that 0:16:59.800 --> 0:17:02.520 says the opposite of what that was just ruled. That 0:17:02.520 --> 0:17:06.679 that law um takes precedence over every ruling, including that 0:17:06.760 --> 0:17:10.000 Supreme Court ruling. So now judges have to follow that 0:17:10.080 --> 0:17:13.160 law until new precedents are set that kind of adjust 0:17:13.200 --> 0:17:17.320 it and make it evolve. That's right. Uh. The next 0:17:17.359 --> 0:17:20.920 one is working something called workability, which is basically like, 0:17:21.080 --> 0:17:24.920 how difficult in practice is it really to implement this 0:17:25.040 --> 0:17:28.960 original decision? Uh? And if it's really difficult for lower 0:17:29.000 --> 0:17:32.640 courts to to follow whatever that original decision was in practice, 0:17:32.680 --> 0:17:35.400 then you may want to take another look at it. Yep. 0:17:36.080 --> 0:17:38.440 Another one is reliance, and this one makes a lot 0:17:38.440 --> 0:17:43.200 of sense to me too. It's um, really kind of um, 0:17:44.320 --> 0:17:46.560 what's that word that people use when it's just kind 0:17:46.560 --> 0:17:50.480 of like it lacks substance though it's it's not concrete. 0:17:50.520 --> 0:17:54.680 It's kind of poofy coofy sounds great. I've never heard it, 0:17:54.720 --> 0:17:57.399 but I like that word. If you're gonna go with 0:17:57.440 --> 0:17:59.399 that from now on, So reliant it makes sense. But 0:17:59.440 --> 0:18:01.679 it's a little fee I think legally speaking, because what 0:18:01.760 --> 0:18:06.480 it's saying is if if this judgment was not quite right, 0:18:06.680 --> 0:18:10.680 if the reasoning wasn't very good, if the deliberation wasn't perfect. 0:18:10.720 --> 0:18:15.560 But it's become so enshrined in society that overturning it 0:18:15.600 --> 0:18:21.680 would basically really mess society up, even temporarily. Um, then 0:18:21.760 --> 0:18:24.400 you would not want to overturn that. That's UM. There's 0:18:24.440 --> 0:18:27.520 a good example of the Miranda rights were under attack 0:18:27.560 --> 0:18:31.040 in two thousand I guess from a case and Um, 0:18:31.160 --> 0:18:33.720 the court I think, in a very narrow I think 0:18:33.760 --> 0:18:36.960 five to four ruling said no Miranda should stay. It's 0:18:36.960 --> 0:18:39.920 on it's based on a flawed interpretation of the Constitution. 0:18:40.520 --> 0:18:44.000 But we've become so reliant on it to protect legal 0:18:44.080 --> 0:18:46.720 rights of people accused of crimes that we're just gonna 0:18:46.800 --> 0:18:48.760 leave it, they said, But it's already in all the 0:18:48.760 --> 0:18:53.880 TV shows exactly. Lawn owner editors were just like, please don't, 0:18:53.920 --> 0:18:56.600 please don't. Yeah, I mean, reliance is kind of the 0:18:56.680 --> 0:19:01.320 it's too late to turn back now. Basically, Yeah, the 0:19:01.359 --> 0:19:03.920 bell has been wrong, the genie's out of the bottle, 0:19:04.640 --> 0:19:08.760 the smell is in your nose. That's my favorite. The 0:19:08.800 --> 0:19:12.760 basically the next one is abandonment, which is basically UM, 0:19:12.800 --> 0:19:15.600 when the court says this is old timey, Um, this 0:19:15.680 --> 0:19:19.480 is antiquated. When they looked at Lawrence v. Texas in 0:19:19.520 --> 0:19:24.359 two thousand three that overturned the previous ruling, UM about 0:19:24.440 --> 0:19:28.480 private same sex as sodomy laws things like that. Uh, 0:19:28.520 --> 0:19:30.800 the Supreme Court came along and said, oh, you know, 0:19:30.920 --> 0:19:33.199 things have kind of changed and maybe we shouldn't be 0:19:33.200 --> 0:19:36.040 in people's bedroom and forcing laws about how they want 0:19:36.080 --> 0:19:38.440 to have sex. Yeah, they're like, we all just saw 0:19:38.520 --> 0:19:43.200 Brokeback Mountain and really we really feel differently about such 0:19:43.200 --> 0:19:47.840 a great love story they wrestled. So there's also legitimacy 0:19:47.960 --> 0:19:51.879 to um, which is saying like, Okay, there's a really 0:19:51.920 --> 0:19:55.800 good chance that if we start overturning previous decisions that 0:19:55.880 --> 0:19:59.600 people have come to rely on that we're actually good decisions. Um, 0:19:59.640 --> 0:20:03.360 that going to to harm the legitimacy of the Supreme 0:20:03.400 --> 0:20:07.600 Court in the eyes of the public. I can't think 0:20:07.600 --> 0:20:11.760 of any example, um, but that is it is something 0:20:11.800 --> 0:20:15.000 that they take into account when they are considering overturning 0:20:15.040 --> 0:20:18.080 something or not. That's right. Um. The next one, I'm 0:20:18.119 --> 0:20:21.600 just going to call it the was it close. That's 0:20:21.600 --> 0:20:25.400 when they can look back at a previous case and say, 0:20:25.840 --> 0:20:28.800 you know, this was five four, there was a really 0:20:28.840 --> 0:20:33.320 spirited descent it wasn't you know, it was maybe a 0:20:33.359 --> 0:20:37.000 controversial case, but not necessarily but just really really close. Uh. 0:20:37.119 --> 0:20:41.240 Then maybe you know, we could take another peek at it, right. Um, 0:20:41.280 --> 0:20:43.520 there's also quality of reasoning. I've kind of hit on 0:20:43.560 --> 0:20:45.760 that a couple of times that it's like, if you 0:20:45.800 --> 0:20:48.439 can look back and look at the judgment and the 0:20:48.480 --> 0:20:51.480 reasoning behind the judgment and it still makes sense, then 0:20:51.720 --> 0:20:53.919 maybe kind of leave that law alone. If it's just 0:20:54.040 --> 0:20:58.639 completely and equated, if it's um racist, if it just 0:20:58.680 --> 0:21:02.159 doesn't jibe with the most of you know, society today, 0:21:02.200 --> 0:21:05.400 then maybe it is ripe for being overturned or other laws, 0:21:05.400 --> 0:21:07.359 like of other laws have come along since then to 0:21:07.480 --> 0:21:12.760 kind of eroded or negated, or if facts have changed. Yeah, 0:21:12.760 --> 0:21:15.600 that's a big one, especially when it comes to scientific 0:21:15.640 --> 0:21:18.439 findings and stuff like like you find the moon is 0:21:18.560 --> 0:21:21.399 not made of cheese, so cheesemakers no longer have to 0:21:21.400 --> 0:21:25.000 pay a moon tax. That's a good example of real 0:21:25.200 --> 0:21:28.480 real life. Uh was that off the cuff? Very nice? No, 0:21:28.720 --> 0:21:31.359 I wrote it down. Let's still I could not think 0:21:31.359 --> 0:21:33.960 of an example, and that is the best I could 0:21:34.000 --> 0:21:37.720 come up with. Sad, that's really good. Uh. So here's 0:21:37.720 --> 0:21:42.000 where judicial philosophy kind of comes into play, because when 0:21:42.040 --> 0:21:43.800 it comes to being a jurist, as we've seen on 0:21:43.840 --> 0:21:47.359 the Supreme Court, especially lately. Uh. There are a couple 0:21:47.440 --> 0:21:51.000 of different ways you can go as far as looking 0:21:51.040 --> 0:21:56.200 at the Constitution. You can be what's called an originalist, which, um, 0:21:56.200 --> 0:21:58.840 you know, some originalists say, you know what, the only 0:21:58.840 --> 0:22:01.960 thing that matters is what these founding fathers meant when 0:22:01.960 --> 0:22:04.760 they wrote these laws hundreds of years ago. Yeah, so 0:22:04.880 --> 0:22:08.879 like whatever happens in society today, however it applies to 0:22:08.960 --> 0:22:12.240 the late eighteenth century, that is the law. That's what 0:22:12.359 --> 0:22:16.240 the originalists think. And there are actually justices on the 0:22:16.240 --> 0:22:20.439 Supreme Court who are fervent originalists, that's right. Uh. And 0:22:20.520 --> 0:22:23.840 there are originalists that say, you know, what's happened in 0:22:23.880 --> 0:22:27.959 the past two and thirty four years is uh some 0:22:28.040 --> 0:22:30.320 of these decisions, a lot of them have subverted the 0:22:30.320 --> 0:22:34.560 will of the and the intent of the founders. And 0:22:34.680 --> 0:22:39.800 pragmatists come along and then say, duh exactly, because what 0:22:39.840 --> 0:22:44.359 we would like to decide law based on is modern 0:22:44.680 --> 0:22:48.199 times and uh, the context in which we live and 0:22:48.240 --> 0:22:51.800 the impact on our society as it is today, and 0:22:51.880 --> 0:22:56.280 those two things pushing and pulling is uh, as we've 0:22:56.760 --> 0:22:59.520 you know, it's always been this way. But every I 0:22:59.520 --> 0:23:01.879 think gener ration when they see the big decisions coming 0:23:01.880 --> 0:23:05.240 down paid more attention to it. So right now, because 0:23:05.280 --> 0:23:07.919 of Row, obviously everyone is paying a lot of attention 0:23:07.960 --> 0:23:12.320 to this push and pull of originalists versus pragmatist but 0:23:12.400 --> 0:23:18.359 also pragmatizing, but also the tension between originalists and people 0:23:18.400 --> 0:23:22.760 who follow Starry Decisive too, there's a big tension between 0:23:22.800 --> 0:23:25.800 that as well. Um and I was reading about originalism 0:23:25.880 --> 0:23:29.560 Chuck and Clarence Thomas is like a hardcore died in 0:23:29.560 --> 0:23:34.880 the wool originalist, like literally what the Founders literally meant 0:23:34.920 --> 0:23:38.240 when they wrote the Constitution is law and anything beyond 0:23:38.280 --> 0:23:41.480 that should not be law. And he if you read it, 0:23:41.560 --> 0:23:44.400