Borderline lifeboat situations

[RationalBiker 0]

It ends up relying on the whims of 12 anonymous citizens...

Why is their decision necessarily based on whim?

I agree with Paul's Here that there can be quite sound, objective reasons to refuse to convict a person on laws which violate a person's rights; for acts which should not be illegal. I agree that there are whimsical jury decisions, with or without nullification, but I do not agree that all nullifications are necessarily "rely on whim". There are people out there, such as the people on this and other forums, that have quite sound and reasonable judgment. Yes, it's true that there is no mechanism in place to test that, but the lack of a mechanism does not make the decision whimsical.

As I said above, I don't support jury nullification in it's current form. However, I think it's quite reasonable and could be proper to institute it if the jury's reasoning could be checked or reviewed prior to finalizing a verdict.

[Paul's Here 0]

Precisely. There's no legal check on the power of jury nullification, nor objective means of review. There is no means of enforcing the use of it only in cases of nonobjective law. It ends up relying on the whims of 12 anonymous citizens to decide which laws we must follow. Despite its faults, I'll stick with the current legal systems.

And that's pretty much all I care to add to this discussion. The topic just has very little interest to me.

Your interpretation doesn't fit what jury nullification is. Juries don't create laws for us to follow. The current legal systems recognize jury nullification.

You mean it is a whim to regard a law as immoral? I have no idea what you mean by "enforcing it" or " no legal check on the power of a jury." Jury nullification typically results in a hung jury and the case can always be retried by the prosecutor; so there is a check on it. All I can say to your assertions is that just as in all areas of philosophy and science there are end points beyond which one cannot get around, so the same is in the legal system. Who "enforces" the Supreme Court's decision that a law is unconstitutional? Who "enforces" a policeman's decision to shoot someone who looks suspicious? Who "enforces" a judges decision to throw out a case before it goes to the jury? At some point one has to say, "reality is the final arbiter and we have to rely on people acting rationally."

You have provided no evidence to show that juries (or individual jurors) act whimsically when judging the moral basis for a law. There may be cases where it is improperly applied or even applied for prejudicial reasons, but "where's the whim"?

Here's a straighforward example. Please show me where the "whim" is.

Juries originally were introduced into England to protect the individual from the tyranny of government. The first case in which juries nullified a law was that of William Penn and William Mead in England in 1670 The jurors refused to convict the two Quaker activists charged with unlawful assembly. The judge refused to accept a verdict other than guilty, and ordered the jurors to resume their deliberations without food or drink. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Pleas ordered the jurors released, holding that they could not be punished for their verdict.

And one last point. Why is "there's no legal check on the power of jury nullification"? Since the legal system refuses to acknowledge the existence of the fact, is it any wonder that no theories have been developed to provide theoretical guidance to jurors? By blanking out a fact of reality, it will not go away. If nullification is such a heinous attack on the justice system, I have not read where you or Stephen advocate that jury nullification be outlawed and the juror who uses it be thrown in jail. Do you advocate such a law?

[Dean M. Sandin 0]

I agree fully with Stephen Speicher that jury nullification is outright anarchy. In the realm of political principle it replaces rationality with whim.

In a basically free society (e.g., ours), the proper role of government is not simply to prohibit the initiatory use of force, but specifically to govern the retaliatory use of force. It exists, in the words of Ayn Rand, to place the retaliatory use of force under objective control. The basis of that objective control is objective law. In an integrated, interlocking working of its parts, the government enacts the statement of the law (legislative branch), administers the law in action (executive branch), and adjudicates cases under the law (judicial branch).

The objectivity of the law crucially requires that it be the legislative function that establishes the law. Just as the government is a monopoly on the control of force, the legislative aspect of government is a monopoly on the definition of laws. It may be obvious that the executive may not invent or change the law -- but for the same reasons, neither can the judicial. At its highest level, the judiciary is responsible for measuring the law against the principles of the government's founding constitution, but that is another matter. The aspect of the judiciary that consists of the jury is delimited to the task of determining relevant fact in hearing a case and applying that body of fact to the resolution of the case in light of the laws established by the legislative branch.

The alternative to limiting the establishment of law to the law-giving branch, and instead placing it in the hands of each citizen, is effectively and literally anarchy. It replaces objectivity in law with whim (subjectivity). Subjective "law" is anti-law -- hence the quote marks. We all might wish to make the outcome of some case conform to our (objectively correct) grasp of moral principle. But wishing is not the basis of objective law. When implemented, that wishing is the destruction of the rule of objective law, one little step at a time, by acceding to subjectivity.

This fact in the governmental realm is a close parallel of the case in the moral realm of committing acts of predation (physical force) when we "know we can get away with it". It doesn't make us better off. It sets a precedent, in both our personal character and in social relationships, that can only work to destroy our character and our free society -- however seemingly small the effect might be in any one case. There can be no principle that measures when to abandon long-term principle for short-term "advantage"; nor when to stop doing so, i.e., when that next straw on the camel's back will be the tipping point in losing our own rational identity personally, and more broadly in destroying our own basis for a free society.

Objectivism observes that living by long-range principles is the one rational approach to life, both in personal action and in government action (such as jury decisions).

[Paul's Here 0]

I agree fully with Stephen Speicher that jury nullification is outright anarchy. In the realm of political principle it replaces rationality with whim.

Please demonstrate.

In a basically free society (e.g., ours), the proper role of government is not simply to prohibit the initiatory use of force, but specifically to govern the retaliatory use of force. It exists, in the words of Ayn Rand, to place the retaliatory use of force under objective control. The basis of that objective control is objective law. In an integrated, interlocking working of its parts, the government enacts the statement of the law (legislative branch), administers the law in action (executive branch), and adjudicates cases under the law (judicial branch).

The objectivity of the law crucially requires that it be the legislative function that establishes the law. Just as the government is a monopoly on the control of force, the legislative aspect of government is a monopoly on the definition of laws. It may be obvious that the executive may not invent or change the law -- but for the same reasons, neither can the judicial.

So, declaring a law unconstitutional is not changing law? Determining that campaign finance laws are not unconsitutitional does not change the Constitution?

At its highest level, the judiciary is responsible for measuring the law against the principles of the government's founding constitution, but that is another matter.

Why is it another matter?

The aspect of the judiciary that consists of the jury is delimited to the task of determining relevant fact in hearing a case and applying that body of fact to the resolution of the case in light of the laws established by the legislative branch.

The alternative to limiting the establishment of law to the law-giving branch, and instead placing it in the hands of each citizen, is effectively and literally anarchy. It replaces objectivity in law with whim (subjectivity). Subjective "law" is anti-law -- hence the quote marks. We all might wish to make the outcome of some case conform to our (objectively correct) grasp of moral principle. But wishing is not the basis of objective law. When implemented, that wishing is the destruction of the rule of objective law, one little step at a time, by acceding to subjectivity.

This fact in the governmental realm is a close parallel of the case in the moral realm of committing acts of predation (physical force) when we "know we can get away with it". It doesn't make us better off. It sets a precedent, in both our personal character and in social relationships, that can only work to destroy our character and our free society -- however seemingly small the effect might be in any one case. There can be no principle that measures when to abandon long-term principle for short-term "advantage"; nor when to stop doing so, i.e., when that next straw on the camel's back will be the tipping point in losing our own rational identity personally, and more broadly in destroying our own basis for a free society.

Objectivism observes that living by long-range principles is the one rational approach to life, both in personal action and in government action (such as jury decisions).

Nothing you state here address what I commented on already. I'm not sure if your just putting your views forth or if you're commenting on issues I mentioned, so I'll just leave it at that.

[Betsy Speicher 0]

The objectivity of the law crucially requires that it be the legislative function that establishes the law. Just as the government is a monopoly on the control of force, the legislative aspect of government is a monopoly on the definition of laws.

This was Ayn Rand's view as well. I remember her saying that she was opposed to jury nullification, but I couldn't find a cite.

The closest I came was this:

The Ayn Rand Letter

Vol. II, No. 26 September 24, 1973

Thought Control

The rules of the jury's process of deliberation—what is relevant or not, what must be considered or ignored, what grounds are valid or invalid, even what degree of certainty is required—are determined by law, by the complex rules of legal evidence. The jury is not given carte blanche to determine something somehow; the judge is the guardian of the law, and it is his task to see that the jury abides by those legal rules; if it does not, he has the power to set aside its verdict. Moreover, the only thing submitted for the jury's decision is the particular facts of a particular case. The jury passes judgment on concretes, not on abstractions: it does not write laws, it does not determine principles, its power ends with the case.

[Betsy Speicher 0]

As far as I interpret that, Roark was charged with blowing up a building, Roark admitted to the bombing, the jury knew that Roark blew up the building, the prosecutor was certain he had won, and the jury decided that Roark was moral and found him not guilty.

What am I missing?

The issue was WHOSE building Roark blew up.

The jury ruled that Roark designed the building with the only payment being that it would be built as designed. Since he was not paid, he still owned the building. It is not a crime to destroy your own property.

[Arnold 0]

The issue was WHOSE building Roark blew up.

The jury ruled that Roark designed the building with the only payment being that it would be built as designed. Since he was not paid, he still owned the building. It is not a crime to destroy your own property.

I don't remember how the title was legally passed to Roark. Was there an agreement that he would own the building if not paid? This is a pivotal event in the book, and one many people have trouble with. Just how did he get off - a plea of temporary insanity, or that he owned everything he blew up?

[Stephen Speicher 0]

This is a pivotal event in the book, and one many people have trouble with. Just how did he get off - a plea of temporary insanity ...

Miss Rand tells us in the quoted passage:

The picture remained in their minds through the long legal discussions that followed. They heard the judge state to the prosecutor that the defendant had, in effect, changed his plea: he had admitted his act, but had not pleaded guilty of the crime; an issue of temporary legal insanity was raised; it was up to the jury to decide whether the defendant knew the nature and quality of his act, or, if he did, whether he knew that the act was wrong. The prosecutor raised no objection; there was an odd silence in the room; he felt certain that he had won his case already. He made his closing address. No one remembered what he said. The judge gave his instructions to the jury. The jury rose and left the courtroom.

He admitted his act but did not plead guilty, and the issue of temporary insanity was raised. The jury clearly grasped that Roark knew the "nature and quality of his act," but that he did not know that it was wrong. (In fact, he thought his act was right.) They ruled accordingly.

[Stephen Speicher 0]

This is a pivotal event in the book, and one many people have trouble with.

Incidentally, Arnold, as discussed by the editors of The Journals of Ayn Rand (pp. 214-215), when Miss Rand was about one-third through the manuscript, she hesitated over the dynamiting climax, concerned that it might be difficult to make the act "plausible objectively." For a very short period of time, she considered an alternative climax.

[Paul's Here 0]

The issue was WHOSE building Roark blew up.

The jury ruled that Roark designed the building with the only payment being that it would be built as designed. Since he was not paid, he still owned the building. It is not a crime to destroy your own property.

Was he charged with destroying his own building? Not that I remember. What you stated above is a moral evaluation: someone deserves to be paid for his work. The jury was not asked to determine who owns the building. If they used that moral evauation to overturn the facts of the charges they appear to be following a principle that is in conflict with what you hold a jury's duty to be.

Besides, the fact that he was not paid for designing the building doesn't mean the Roark owned the property. Did Roark pay for the land, the building materials, the workers' salaries?

[Paul's Here 0]

Miss Rand tells us in the quoted passage:

He admitted his act but did not plead guilty, and the issue of temporary insanity was raised. The jury clearly grasped that Roark knew the "nature and quality of his act," but that he did not know that it was wrong. (In fact, he thought his act was right.) They ruled accordingly.

I thought I understood the passage until this. What are you saying? Because Roark thought he was right, they found him not guilty?

[RationalBiker 0]

The issue was WHOSE building Roark blew up.

The jury ruled that Roark designed the building with the only payment being that it would be built as designed. Since he was not paid, he still owned the building. It is not a crime to destroy your own property.

I'm confused about this. How does designing a building for someone translate into ownership of that building? I thought their contract was for his design and his labor. If they failed to honor that contract, his just compensation would be for the design and the labor, not all the materials and land.

Was Roark using his own materials and his own money on his own land for this building, which he would then turn over ownership once completed IF they allowed him to stick to his design? Or was he using their materials, with their money on their land?

Why wasn't civil court the proper recourse for Roark?

[Paul's Here 0]

---------

Why wasn't civil court the proper recourse for Roark?

It was a government contract, and you can't sue the government without its consent!!!

[Paul's Here 0]

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The closest I came was this:

The Ayn Rand Letter

Vol. II, No. 26 September 24, 1973

Thought Control

The rules of the jury's process of deliberation—what is relevant or not, what must be considered or ignored, what grounds are valid or invalid, even what degree of certainty is required—are determined by law, by the complex rules of legal evidence. The jury is not given carte blanche to determine something somehow; the judge is the guardian of the law, and it is his task to see that the jury abides by those legal rules; if it does not, he has the power to set aside its verdict. Moreover, the only thing submitted for the jury's decision is the particular facts of a particular case. The jury passes judgment on concretes, not on abstractions: it does not write laws, it does not determine principles, its power ends with the case.

I don't see how what Rand says above is an argument against jury nullification. All it essentially means is that a jury should not morally evaluate a moral law because it has been defined in accordance with objective procedures. None of my statements about jury nullification conflict with the above quote.

[Burgess Laughlin 0]

It was a government contract, and you can't sue the government without its consent!!!

I don't understand. If we are talking about the federal government, does some agency of it decide whether to allow someone to sue any other agency? How does that work?

Or are you saying that any agency, such as a welfare "housing authority" can decide whether or not someone can sue it?

What I am wondering about is whether there is an inadvertent fallacy of equivocation in saying that "the government" must consent to being sued.

I don't know. I am asking for information.

[Paul's Here 0]

I don't understand. If we are talking about the federal government, does some agency of it decide whether to allow someone to sue any other agency? How does that work?

Or are you saying that any agency, such as a welfare "housing authority" can decide whether or not someone can sue it?

What I am wondering about is whether there is an inadvertent fallacy of equivocation in saying that "the government" must consent to being sued.

I don't know. I am asking for information.

I can guarantee you that it is not equivocation. I'll check to see how it actually works and get back to you.

[Paul's Here 0]

I don't understand. If we are talking about the federal government, does some agency of it decide whether to allow someone to sue any other agency? How does that work?

Or are you saying that any agency, such as a welfare "housing authority" can decide whether or not someone can sue it?

What I am wondering about is whether there is an inadvertent fallacy of equivocation in saying that "the government" must consent to being sued.

I don't know. I am asking for information.

Amendment XI from US Constitution

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

This means that you cannot use the federal courts to sue one state if you live in another state.

Here's one lawyer's recommendation.

The federal government, like any other entity, often is responsible for causing innocent people to be harmed. For those of us who live in the Washington metropolitan area, the chances of being harmed by a government employee are increased. The situations in which we encounter the government are both frequent and varied, and potentially include visiting a government hospital, or being struck be a driver operating a government vehicle. If you are victimized by the negligent acts of a federal worker, here is some basic information you should know.

The very first task to be performed when suing the federal government is to file a document known as a Notice of Claim. Essentially, this means that you must file a claim with the agency that committed the negligence (i.e., Department of Education, Secret Service, etc.) The Notice of Claim is filed on a standard form 95, commonly known as the “SF95.” It is worth mentioning that the SF95 must contain a “sum certain” claim, meaning that the claimant must identify a specific dollar amount that the claimant is seeking. The SF95 must be filed within the applicable statute of limitations, which is two years from the date the claimant knew, or should have known, of the negligence. If the SF95 is not timely filed, the claim cannot be brought.

Once the claim has been filed, then “notice” is considered given. At that point, the agency has six months by which to take action on the claim. This means that the government can investigate the matter, and in some situations settle claims. If the government has not taken action then suit can be brought. The legal standard is whether the government has taken a “final administrative action.”

Next, if (a) either settlement has not been effectuated, or ( no action has been taken, then suit can be filed. Suit must be brought against the United States in the United States District Court. Usually, the claimant is not entitled to a jury trial. This means that a federal judge will decide what compensation, if any, is appropriate.

Sovereign Immunity

A doctrine precluding the institution of a suit against the sovereign [government] without its consent. Though commonly believed to be rooted in English law, it is actually rooted in the inherent nature of power and the ability of those who hold power to shield themselves.

In England it was predicated on the concept that "the sovereign can do no wrong", a concept developed and enforced by - guess who? However, since the American revolution explictedly rejected this interesting idea, the American rulers had to come up with another rationale to protect their power. One they came up with is that the "sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.

"tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v. United States, 342 U.S. 25, 27 (1951).

11 U.S.C. S 106, "Waiver of Sovereign Immunity," provides:

(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.

The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent)

Federal sovereign immunity is readily distinguishable from the states' immunity under the Eleventh Amendment and foreign governments' immunity under the Foreign Sovereign Immunities Act. The latter two doctrines allow one sovereign entity the right to avoid, altogether, being subjected to litigation in another sovereign's courts. Pullman Constr., 23 F.3d at 1169. Similar sovereignty concerns are not implicated by the maintenance of suit against the United States in federal court. Federal sovereign immunity has had such broad exceptions carved out of it that, as Pullman Construction concluded, "Congress, on behalf of the United States, has surrendered any comparable right not to be a litigant in its own courts." Id. In the present day, federal sovereign immunity serves merely to channel litigation into the appropriate avenue for redress, ensuring that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Pullman Constr. at 1168 (quoting Art. I, section 9, cl. 7).

Federal sovereign immunity is a defense to liability rather than a right to be free from trial.

The Supreme Court has ruled that in a case involving the government's sovereign immunity the statute in question must be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires. See United States v. Nordic Village, Inc., 503 U.S. 30, 33-35 (1992).

[Burgess Laughlin 0]

I am not sure I have understood the various texts you have quoted, Paul, but tentatively I conclude that I was right to wonder if there is an equivocation involved. Apparently I can sue (file suit against) a particular agency of government without that agency's consent, as long as I follow preliminary procedures specified for each agency under law, and as long as I don't expect the agency to be held automatically liable for damage they have done to me.

Right? Or do you have another interpretation?

[Paul's Here 0]

I am not sure I have understood the various texts you have quoted, Paul, but tentatively I conclude that I was right to wonder if there is an equivocation involved. Apparently I can sue (file suit against) a particular agency of government without that agency's consent, as long as I follow preliminary procedures specified for each agency under law, and as long as I don't expect the agency to be held automatically liable for damage they have done to me.

Right? Or do you have another interpretation?

I'm not sure what equivocation you're referring to.

I have no personal experience with this. My understanding is that that you can certainly sue, but you can only sue to the very limited extent already defined by law, what the government has already defined as "sue-able". And you are not entitled to a trial by jury. I do not think that you can sue the EPA or OSHA if they pass regulations that cause you financial harm or restrict the use of your property. Or, perhaps you can sue, but the chances of winning are negligible since its a federal judge overseeing your case. It is my understanding that regulatory agencies are even less sue-able (more difficult to sue, i.e., more legal obstacles) than the government. That is what the following quote (from above) was referring to: "The Supreme Court has ruled that in a case involving the government's sovereign immunity the statute in question must be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires." In other words, you can only sue what the government has explicitly agreed to be sued for, and no more. If there is no law granting you the ability to sue over a particular issue, then you cannot sue.

If I remember correctly, there have been other members on the Forum who have previously posted about issues like this when the government interferes with their property or livelihood. Perhaps you could look up those details.

[Betsy Speicher 0]

I don't remember how the title was legally passed to Roark. Was there an agreement that he would own the building if not paid? This is a pivotal event in the book, and one many people have trouble with. Just how did he get off - a plea of temporary insanity, or that he owned everything he blew up?

It was a criminal trial to determine whether Roark deliberately destroyed someone else's property. He made the case that he was reclaiming what he created and, due to the government's breach of contract, was not paid for.

"I designed Cortlandt. I gave it to you. I destroyed it.

"I destroyed it because I did not choose to let it exist. [...] They were permitted to do it by the general implication that the altruistic purpose of the building superseded all rights and that I had no claim to stand against it.

"I agreed to design Cortlandt for the purpose of seeing it erected as I designed it and for no other reason. That was the price I set for my work. I was not paid.

"[...] I did not receive the payment I asked. But the owners of Cortlandt got what they needed from me. They wanted a scheme devised to build a structure as cheaply as possible. They found no one else who could do it to their satisfaction. I could and did. They took the benefit of my work and made me contribute it as a gift. But I am not an altruist. I do not contribute gifts of this nature.

Normally, an architect would sue his client in a situation like this, but you can't sue the government without its consent.

When Keating invoked his contract, he was told: "All right, go ahead, try to sue the government. Try it." At times, he felt a desire to kill. There was no one to kill. Had he been granted the privilege, he could not have chosen a victim. Nobody was responsible. There was no purpose and no cause. It had just happened.

In the movie, the judge instructs the jury that they are only to rule on the criminal charge and that damages, etc. will be dealt with in a separate civil action.

In the book, the government's costs are covered when

Roger Enright bought the site, the plans and the ruins of Cortlandt from the government. He ordered every twisted remnant of foundations dug out to leave a clean hole in the earth. He hired Howard Roark to rebuild the project. Placing a single contractor in charge, observing the strict economy of the plans, Enright budgeted the undertaking to set low rentals with a comfortable margin of profit for himself.

[Arnold 0]

It was a criminal trial to determine whether Roark deliberately destroyed someone else's property. He made the case that he was reclaiming what he created and, due to the government's breach of contract, was not paid for.

Normally, an architect would sue his client in a situation like this, but you can't sue the government without its consent.

In the movie, the judge instructs the jury that they are only to rule on the criminal charge and that damages, etc. will be dealt with in a separate civil action.

In the book, the government's costs are covered when (quote book)

I realize that this is fiction, and this incident is to help with the plot, so I don't want to split legal hairs here. While he was not paid for his work, it seems to me that he refused to accept the law as it stood, and not only destroyed his own product (which he had a right to), but the property of others. As I see it, he acted on what he believed to be right, not according to law. Am I seeing this correctly or not?

[Guest ElizabethLee]

I realize that this is fiction, and this incident is to help with the plot, so I don't want to split legal hairs here. While he was not paid for his work, it seems to me that he refused to accept the law as it stood, and not only destroyed his own product (which he had a right to), but the property of others. As I see it, he acted on what he believed to be right, not according to law. Am I seeing this correctly or not?

hi Arnold! That's how I've always seen it too. This is a very interesting discussion and perhaps it will help me change my view of Fountainhead. Dr. Bernstein's view of Dominique certainlly gave me more sympathy for her, lol!

[Burgess Laughlin 0]

I'm not sure what equivocation you're referring to.

I am still trying to understand this issue. Following is my provisional understanding at this point.

SITUATION 1. If I am a manufacturer, and I sell widget X to the Defense Department, and the DD doesn't pay me for the widgets I delivered, then I have a right to file suit -- for breach of contract -- against the DD. I will file that suit in the federal court system.

I do not have to get permission from the DD to file the suit. Perhaps the DD, via its contracts, specifies that a claimant must first go through a preliminary procedure of filing paperwork with them (perhaps in hopes of resolving the conflict before going to court). This does not constitute needing to get the DD's permission to sue.

A federal court is not "the government," just as the DD is not "the government." I would be committing the fallacy of composition if I had said that the DD is "the government." Likewise for the federal court in which I filed a suit. An equivocation would arise if I said "the government" when I meant the court, and then I said "the government" again when I meant the DD without specifying the difference.

SITUATION 2. According to news reports I have seen over the years (not a very reliable source!), many private organizations file suits against particular agencies of the U. S. government to try to get them to do something required by law or try to get them to desist from doing something: for example, a Sierra Club type organization filing suit against the Forestry Service (or whatever its called) to get them to stop culling trees in a "primitive" area. I have never seen any evidence that suggests the Sierra Club must first get permission from the FS to sue the FS. Of course, a court -- presumably following objective procedures and meeting objective criteria -- can and should decide whether to accept the suit. If the suit is frivolous or contrary to law, then the court should reject the suit. I do not know what those criteria are.

SITUATION 3. A government should prohibit individuals from filing suit against a government agency for liability (damages) if that agency is acting lawfully. This protects legislators, indirectly. Otherwise, no legislator would be willing to pass any law. Legislators need this sort of immunity from personal liability for the effects of the laws they pass, no matter how disgusting the laws.

On the other hand, if an agency -- such as a police force -- acts unlawfully, for example, by breaking down the door of my apartment on a wild-goose chase for drugs, based on no credible evidence, then I certainly do have (according to news reports) the right to file suit for damages. I do not need the permission of the police department to file suit.

The above is my sketch of what little I "know." I offer it as a target for correction, especially by an expert in this particular field of law. Of course, only a detailed study, going to the priimary sources for the problem, will resolve the questions involved.

I would ask about this in the expert forum, but I am still waiting for a response to my question about the meaning of "reasonable man."

[Dean M. Sandin 0]

The objectivity of the law crucially requires that it be the legislative function that establishes the law. Just as the government is a monopoly on the control of force, the legislative aspect of government is a monopoly on the definition of laws. It may be obvious that the executive may not invent or change the law -- but for the same reasons, neither can the judicial.

So, declaring a law unconstitutional is not changing law? Determining that campaign finance laws are not unconsitutitional does not change the Constitution?

As for the first question, I covered the determination of unconstitutionality in the next paragraph of my original posting. See below.

As for the second question, changing the Constitution is expressly done only through the processes specified in it. Of course, I'm sure that actually you meant changes in understanding the Constitution, but realize that changing understandings of the Constitution are always possible to men because of ignorance, innocent error, and/or just plain corruption. No system can avoid that in principle, due to volition and non-omniscience, as with error in general. As in epistemology itself, in political matters the prospect of error or corruption is best fought through objectivity in achieving our ends.

At its highest level, the judiciary is responsible for measuring the law against the principles of the government's founding constitution, but that is another matter.

Why is it another matter?

The authority to decide the constitutionality of a law enacted by the legislative branch (or of a procedure or act of the executive branch) is a judicial function required for objectivity in the law. There's no resemblance between this function of a Supreme Court and the function of a jury to ascertain the relation of the facts to the law in a given case -- other than that the jury function too provides for objectivity in the law.

With regard to a proposed jury nullification function, there would be an unfortunate crucial connection. Namely, it would be that two entities at opposite levels of the judicial hierarchy, which exist for very different purposes at far-removed levels of abstraction, would each be claiming the same final authority: nullification of a law. This would be a contradiction. Contradiction in the realm of final authority is a hallmark of anarchism. Non-contradiction in this realm is a hallmark of proper government.

Nothing you state here address what I commented on already. I'm not sure if your just putting your views forth or if you're commenting on issues I mentioned, so I'll just leave it at that.

Following Stephen Speicher, I was addressing the subject in general. Any and all specific issues in regard to the scope and powers of juries are ultimately evaluated according to the fundamental principle of objectivity in the law. Stephen and I were addressing things at that level.

[Paul's Here 0]

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The authority to decide the constitutionality of a law enacted by the legislative branch (or of a procedure or act of the executive branch) is a judicial function required for objectivity in the law. There's no resemblance between this function of a Supreme Court and the function of a jury to ascertain the relation of the facts to the law in a given case -- other than that the jury function too provides for objectivity in the law.

There is nothing in the Constitution that grants the courts the authority to to declare laws unconstitutional. That is an authority the courts assumed after the Constitution was written.

The function of the jury is not to provide for objectivity of the law. The jury function is to act as a check on the authority of the governement to pass immoral laws.