JDJEDTJR fails to see the important obvious defects in the American Torts Law System He Studies
After Civil Procedure and Contracts, Torts and Property come in almost tied for third in terms of how popular and important a core subject they are in the eyes of JDJEDTSR, who is the incarnation of law schools in terms of quantity combined with alleged quality. Due to the existence of surprising, maverick schools of good reputation which require the study of property but not torts, JDJEDTSR might be said to require the study of property at slightly more schools compared to the number of schools at which he requires the study of torts, but most of the time he requires the study of both property and torts, with primacy placed upon torts in the sense that torts is studied before property.
JDJEDTJR is the incarnation of law schools regardless of alleged quality of law school. JDJEDTJR's favorite torts textbook is "Cases & Materials on Torts", by Richard A Epstein (1992) ( http://www.amazon.com/exec/obidos/tg/detail/-/073554011X/102-1374166-4870552?v=glance ). Epstein starts his book out with a description of "Vosburg v Putney", a 125 year old County Circuit Court (Waukesha, Wisconsin) case that is famous in law schools, that supposedly provides important precedent with regards to dealing with ambiguities in written law. Apparently the rest of his book goes on to plunge into case after case of the Vosburg v Putney type, analyzing how they provide precedent with regards to ambiguities in the law.
In the real world, the most important actual reference to Vosburg v Putney that I could find, was an Oklahoma court decision which alongside Vosburg v Putney referred to "American Jurisprudence 2nd", a legal encyclopaedia put out by a private publisher, "the West Group":
ΒΆ5 Defendant strenuously argues that the class had not been called to order by the teacher and that the defendants were merely playing until the teacher arrived, and therefore could not be said to have been engaged in any wrongful or unlawful acts. We do not agree. We do not believe and are not willing to hold that the willful and deliberate throwing of wooden blackboard erasers at other persons in a class room containing 35 to 40 students is an innocent and lawful pastime, even though done in sport and without intent to injure. Such conduct is wrongful, and we so hold. Under such circumstances the rule applicable to this case is well stated at 4 Am.Jur. 128, Assault and Battery, sec. 5, as follows:
"Where, however, the basis of an action is assault and battery, the intention with which the injury was done is immaterial so far as the maintenance of the action is concerned, provided the act causing the injury was wrongful, for if the act was wrongful, the intent must necessarily have been wrongful. The fact that an act was done with a good intention, or without any unlawful intention, cannot change that which, by reason of its unlawfulness, is essentially an assault and battery into a lawful act, thereby releasing the aggressor from liability."
See also Peterson v. Haffner, supra; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439; Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Rolater v. Strain, 39 Okl. 572, 137 P. 96, 50 L.R.A., N.S., 880. We therefore conclude that there is no merit in the first proposition.
-- http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=30999
Regarding such reference to "American Jurisprudence 2nd", legal-method.com states:
(Ans. This (American Jurisprudence 2nd) is an encyclopedia of American law, a vast analytical outline of American case law rules on all legal topics. The writers are anonymous and do not purport to have special expertise. American lawyers and judges use it to find relevant precedents and for general orientation. Although some state court judges use it as "authority," this is inferior practice because its statements of law are based on the judgments of unknown persons about what cases have held and what legal principles are established by the cited cases. All American law students are taught to rely on their own reading of the cases, not that in American Jurisprudence or Corpus Juris.
-- http://legal-method.com/answers4.htm
The Oklahoma court's use of "American Jurisprudence 2nd" made more sense to me than the emphasis placed on individual precedent-setting cases by JDJEDTJR in his study of torts, but actually the reference to the legal encyclopaedia, reference to the alleged precedent of cases such as Vosberg v Putney, and the general failure of JDJEDTJR to see the defects in the case-precedent approach he plunges into, make little sense to me and do not instill me with confidence that the American legal structure is rational or built so as to promote the ability of the US to compete economically with other nations that have more rational legal structures. If I were to put my feelings into a speech to a court, the speech might go something as follows:
Statement to Court re JDJEDTJR's 'Vosberg v Putney' based approach to Tort Law and to A&B charges leveled against defendant
The counsel for the plaintiff, JDJEDTJR, is appealing to Vosburg v Putney, a 125 year old case from a county circuit court in Wisconsin. Plaintiff's counsel expects the jury to find the defendant guilty, on the basis of this 125 year old case from out of nowhere in rural Wisconsin. Such points to a kind of madness and contempt for reason on the part of the counsel for the plaintiff, JDJEDTJR, and on the part of those who have written out the laws of this state with regards to assault and battery, which indicates that as a consequence, the jury should acquit the defendant.
For 125 years now, courts all over the nation have been referring to the precedent set in a rural nineteenth century era county in Wisconsin, Vosburg v Putney; yet, in all that time, the state whose laws have jurisdiction in this case, has failed to re-write its laws on assault and battery, so as to rid such law of ambiguity, as a result of which, we are still referring to Vosburg v Putney. If the state had been competent during this time, it would have re-written the law so as to rid it of ambiguity so that there would be no need to refer to Vosburg v Putney. It should not be possible in a case such as this, to find the defendant guilty, on the grounds of laws that have been written out in incompetent fashion by the state.
Counsel for plaintiff, JDJEDTJR, has also referred to "Am Juris 2nd", and to "Corpus Juris Secundum", in his attempt to convince the court of the guilt of the defendant. Yet, the laws governing assault and battery in this state, do not contain any statement, conveying that the legislature of this state, agrees to be governed by "American Jurisprudence 2nd" or "Corpus Juris Secundum". Therefore there is no logical justification to refer to these legal encyclopaedias that are put out by some private publisher, when it comes to making arguments about this case.
True, the Vosburg v Putney case was a famous case, true, it has often been referred to by lawyers, judges, writers, and law schools, but how could anyone in their right mind, deify the decision of an obscure rural nineteenth century Wisconsin county court jury, simply because its decision has become famous and much cited? Counsel for plaintiff, JDJEDTJR, does not know exactly how many times Vosburg v Putney has been cited; counsel for plaintiff does not know how many times Vosburg v Putney has been cited compared to how many times other cases have been cited; counsel for plaintiff has not fixed any particular number of citations of case as the minimum cut-off point beyond which a case shall be deified; counsel for plaintiff can find no statement of the legislature of this state that declares that the decision of the jury in far-off rural Waukesha Wisconsin should be referred to with regards to cases of assault and battery in this state; yet counsel for plaintiff, demands that Vosburg v Putney be accorded the respect given to Holy Scripture, and to the words of the Gods! There is nothing scientific or rational about this kind of approach.
Counsel for plaintiff, JDJEDTJR, appeals to the authority of two legal encyclopaedias, "American Jurisprudence 2nd", and "Corpus Juris Secundum", both of which are published by a private collection of profit-minded individuals, known as the "West Group". Why in the world, should any special consideration or respect by paid to these two encyclopaedias produced by this private organization the West group? This state, which has jurisdiction with regards to the alleged assault and battery we are now discussing, has not in its law regarding assault and battery, given any indication, that the opinions expressed in these two legal encyclopaedias, should form the basis of the resolution of ambiguities found in the laws of this state. How then can counsel for plaintiff, behave as if special respect should be shown for the opinions found in these encyclopaedias?
The legislature of this state, in the performance of its duty to write the laws of this state, has produced ambiguous law. The ambiguities should be resolved in accordance with the written law of this state, and in accordance with common sense. There is no rational basis to resolve such ambiguity through appeal to decisions of courts that have no jurisdiction in this case, or through appeal to legal encyclopaedias produced by private organizations that are not even located in this state.
This court should not dignify the irrational conduct of this state, and of the lawyer for the plaintiff JDJEDTJR, by deciding in favor of plaintiff. Such dignification will only lead to madness and inefficiency in the courts, a general attitude that what is written into law by a state is irrelevant when it comes to offenses the state has jurisidiction over, and to this nation falling behind other nations economically, due to the legal framework upon which the economically productive activities of this nation rests, being a framework that is based on haphazard, irrational, references to precedents set in far-away, minor, nineteenth century courts that have no jurisdiction with regards to a particular case being discussed.
The nation's legal contracts situation, is a problem, and is similar to the nation's torts situation, in that in both cases there are problems with a failure on the part of contracting parties, or on the part of government, to explicitly agree to be governed by a given code or by stare decisis, as a result of which unnecessary disputes arise regarding ambiguities in contract and tort. In the one case the problem is the failure of the contracting parties to agree beforehand to be governed by a given code in the resolution of ambiguities; in the other case the problem is the failure of government to specify whether stare decisis or a given code should regulate the resolution of ambiguities in law. To simply assume assent is given to the governance of a code or approach in the resolution of ambiguities, when such assent has not in fact been given, is to also blythely assume that when such assent indeed has in actuality been given, it has not been given. The law of contract is of obvious importance to a society's economic health. Therefore I have emphasized the problem of the assumption that tort law has given its assent to domination by a given code or approach when in fact such assent has not been given, and therefore I have emphasized the economic consequences of such.
@2005 David Virgil Hobbs
This essay expresses my opinions as of now, which may not completely correlate with fact.
JDJEDTJR is the incarnation of law schools regardless of alleged quality of law school. JDJEDTJR's favorite torts textbook is "Cases & Materials on Torts", by Richard A Epstein (1992) ( http://www.amazon.com/exec/obidos/tg/detail/-/073554011X/102-1374166-4870552?v=glance ). Epstein starts his book out with a description of "Vosburg v Putney", a 125 year old County Circuit Court (Waukesha, Wisconsin) case that is famous in law schools, that supposedly provides important precedent with regards to dealing with ambiguities in written law. Apparently the rest of his book goes on to plunge into case after case of the Vosburg v Putney type, analyzing how they provide precedent with regards to ambiguities in the law.
In the real world, the most important actual reference to Vosburg v Putney that I could find, was an Oklahoma court decision which alongside Vosburg v Putney referred to "American Jurisprudence 2nd", a legal encyclopaedia put out by a private publisher, "the West Group":
ΒΆ5 Defendant strenuously argues that the class had not been called to order by the teacher and that the defendants were merely playing until the teacher arrived, and therefore could not be said to have been engaged in any wrongful or unlawful acts. We do not agree. We do not believe and are not willing to hold that the willful and deliberate throwing of wooden blackboard erasers at other persons in a class room containing 35 to 40 students is an innocent and lawful pastime, even though done in sport and without intent to injure. Such conduct is wrongful, and we so hold. Under such circumstances the rule applicable to this case is well stated at 4 Am.Jur. 128, Assault and Battery, sec. 5, as follows:
"Where, however, the basis of an action is assault and battery, the intention with which the injury was done is immaterial so far as the maintenance of the action is concerned, provided the act causing the injury was wrongful, for if the act was wrongful, the intent must necessarily have been wrongful. The fact that an act was done with a good intention, or without any unlawful intention, cannot change that which, by reason of its unlawfulness, is essentially an assault and battery into a lawful act, thereby releasing the aggressor from liability."
See also Peterson v. Haffner, supra; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439; Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Rolater v. Strain, 39 Okl. 572, 137 P. 96, 50 L.R.A., N.S., 880. We therefore conclude that there is no merit in the first proposition.
-- http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=30999
Regarding such reference to "American Jurisprudence 2nd", legal-method.com states:
(Ans. This (American Jurisprudence 2nd) is an encyclopedia of American law, a vast analytical outline of American case law rules on all legal topics. The writers are anonymous and do not purport to have special expertise. American lawyers and judges use it to find relevant precedents and for general orientation. Although some state court judges use it as "authority," this is inferior practice because its statements of law are based on the judgments of unknown persons about what cases have held and what legal principles are established by the cited cases. All American law students are taught to rely on their own reading of the cases, not that in American Jurisprudence or Corpus Juris.
-- http://legal-method.com/answers4.htm
The Oklahoma court's use of "American Jurisprudence 2nd" made more sense to me than the emphasis placed on individual precedent-setting cases by JDJEDTJR in his study of torts, but actually the reference to the legal encyclopaedia, reference to the alleged precedent of cases such as Vosberg v Putney, and the general failure of JDJEDTJR to see the defects in the case-precedent approach he plunges into, make little sense to me and do not instill me with confidence that the American legal structure is rational or built so as to promote the ability of the US to compete economically with other nations that have more rational legal structures. If I were to put my feelings into a speech to a court, the speech might go something as follows:
Statement to Court re JDJEDTJR's 'Vosberg v Putney' based approach to Tort Law and to A&B charges leveled against defendant
The counsel for the plaintiff, JDJEDTJR, is appealing to Vosburg v Putney, a 125 year old case from a county circuit court in Wisconsin. Plaintiff's counsel expects the jury to find the defendant guilty, on the basis of this 125 year old case from out of nowhere in rural Wisconsin. Such points to a kind of madness and contempt for reason on the part of the counsel for the plaintiff, JDJEDTJR, and on the part of those who have written out the laws of this state with regards to assault and battery, which indicates that as a consequence, the jury should acquit the defendant.
For 125 years now, courts all over the nation have been referring to the precedent set in a rural nineteenth century era county in Wisconsin, Vosburg v Putney; yet, in all that time, the state whose laws have jurisdiction in this case, has failed to re-write its laws on assault and battery, so as to rid such law of ambiguity, as a result of which, we are still referring to Vosburg v Putney. If the state had been competent during this time, it would have re-written the law so as to rid it of ambiguity so that there would be no need to refer to Vosburg v Putney. It should not be possible in a case such as this, to find the defendant guilty, on the grounds of laws that have been written out in incompetent fashion by the state.
Counsel for plaintiff, JDJEDTJR, has also referred to "Am Juris 2nd", and to "Corpus Juris Secundum", in his attempt to convince the court of the guilt of the defendant. Yet, the laws governing assault and battery in this state, do not contain any statement, conveying that the legislature of this state, agrees to be governed by "American Jurisprudence 2nd" or "Corpus Juris Secundum". Therefore there is no logical justification to refer to these legal encyclopaedias that are put out by some private publisher, when it comes to making arguments about this case.
True, the Vosburg v Putney case was a famous case, true, it has often been referred to by lawyers, judges, writers, and law schools, but how could anyone in their right mind, deify the decision of an obscure rural nineteenth century Wisconsin county court jury, simply because its decision has become famous and much cited? Counsel for plaintiff, JDJEDTJR, does not know exactly how many times Vosburg v Putney has been cited; counsel for plaintiff does not know how many times Vosburg v Putney has been cited compared to how many times other cases have been cited; counsel for plaintiff has not fixed any particular number of citations of case as the minimum cut-off point beyond which a case shall be deified; counsel for plaintiff can find no statement of the legislature of this state that declares that the decision of the jury in far-off rural Waukesha Wisconsin should be referred to with regards to cases of assault and battery in this state; yet counsel for plaintiff, demands that Vosburg v Putney be accorded the respect given to Holy Scripture, and to the words of the Gods! There is nothing scientific or rational about this kind of approach.
Counsel for plaintiff, JDJEDTJR, appeals to the authority of two legal encyclopaedias, "American Jurisprudence 2nd", and "Corpus Juris Secundum", both of which are published by a private collection of profit-minded individuals, known as the "West Group". Why in the world, should any special consideration or respect by paid to these two encyclopaedias produced by this private organization the West group? This state, which has jurisdiction with regards to the alleged assault and battery we are now discussing, has not in its law regarding assault and battery, given any indication, that the opinions expressed in these two legal encyclopaedias, should form the basis of the resolution of ambiguities found in the laws of this state. How then can counsel for plaintiff, behave as if special respect should be shown for the opinions found in these encyclopaedias?
The legislature of this state, in the performance of its duty to write the laws of this state, has produced ambiguous law. The ambiguities should be resolved in accordance with the written law of this state, and in accordance with common sense. There is no rational basis to resolve such ambiguity through appeal to decisions of courts that have no jurisdiction in this case, or through appeal to legal encyclopaedias produced by private organizations that are not even located in this state.
This court should not dignify the irrational conduct of this state, and of the lawyer for the plaintiff JDJEDTJR, by deciding in favor of plaintiff. Such dignification will only lead to madness and inefficiency in the courts, a general attitude that what is written into law by a state is irrelevant when it comes to offenses the state has jurisidiction over, and to this nation falling behind other nations economically, due to the legal framework upon which the economically productive activities of this nation rests, being a framework that is based on haphazard, irrational, references to precedents set in far-away, minor, nineteenth century courts that have no jurisdiction with regards to a particular case being discussed.
The nation's legal contracts situation, is a problem, and is similar to the nation's torts situation, in that in both cases there are problems with a failure on the part of contracting parties, or on the part of government, to explicitly agree to be governed by a given code or by stare decisis, as a result of which unnecessary disputes arise regarding ambiguities in contract and tort. In the one case the problem is the failure of the contracting parties to agree beforehand to be governed by a given code in the resolution of ambiguities; in the other case the problem is the failure of government to specify whether stare decisis or a given code should regulate the resolution of ambiguities in law. To simply assume assent is given to the governance of a code or approach in the resolution of ambiguities, when such assent has not in fact been given, is to also blythely assume that when such assent indeed has in actuality been given, it has not been given. The law of contract is of obvious importance to a society's economic health. Therefore I have emphasized the problem of the assumption that tort law has given its assent to domination by a given code or approach when in fact such assent has not been given, and therefore I have emphasized the economic consequences of such.
@2005 David Virgil Hobbs
This essay expresses my opinions as of now, which may not completely correlate with fact.
posted by David Virgil at 2:48 PM
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