The existing legal structure: TRO => Preliminary Injunction => Permanent Injunction (with increasing thresholds of proof) is adequate. “Abuse of legal process” is the remedy to bad faith TROs.
It regularly surprises me that no one else much brings up, at least in American common law (maybe the common law generally?) the tort of abuse of legal process. Maybe it’s for fear of accusations of champetry, a desire not to defame the legal profession, or ignorance? Professional prudence? I have no idea, and don’t wish to claim others’ ignorant. Anyway, nothing like an in terroram fine to make a contemnor comply!
For most all legal problems there are existing legal instruments, though perhaps people are unaware of them?
Anyway, a quicker more reliable remedy would not be to create some new legislation or, WORSE, empowering interventionist judges and politicizing the judiciary. Adjudication should be neutral, unbiased, impartial, and in the interest of justice: and this is why “judicial activism” is so horribly corrosive to the rule of law and justice as well as being anti-democratic and thus inherently illegitimate. If people want a new law but fail to push it through the legislature too bad so sad. But if people want a legal remedy to a legal problem all they must do is a bit of research.
I mean … of course, now is absolutely the time for constitutional innovation. When the rest of the Constitution is being torn up by a bunch of oligarchs, your idea is to tear the last bit of it up for them? Give me a break.
Well, this will not have the political effect you are looking for.
Recall, the challenge is political, not legal. The answer (politically) is to involve Congress, specifically the speaker to form a select committee for immediate advice and consent vis a vis judicial overreach.
Without the Speaker and the House, there is this political threat of “being a dictator” (or whatever.
The facts on the ground unfortunately are that eventually the executive will be pushed into telling the court to its face to “pound sand”. And that will not look good. Nomatter.
So for the cost of a little power, this problem can be headed off without blatant nullification.
Of course, I’m a big Jackson fan myself. But that is risky and would take us from bad to worse. Pity if that was necessary.
Not sure what Taylor Swift has to do with this, Professor.
Hahaha
If not for the title, I’m not sure that I would have gotten that this is satire. Very well done, Professor.
Funny - I thought the last graf was maybe too broad! It’s a delicate balance.
Is this comedy, because it’s laughable, a complete evisceration of judicial authority?
Not a Swift fan, I take it?
The existing legal structure: TRO => Preliminary Injunction => Permanent Injunction (with increasing thresholds of proof) is adequate. “Abuse of legal process” is the remedy to bad faith TROs.
It regularly surprises me that no one else much brings up, at least in American common law (maybe the common law generally?) the tort of abuse of legal process. Maybe it’s for fear of accusations of champetry, a desire not to defame the legal profession, or ignorance? Professional prudence? I have no idea, and don’t wish to claim others’ ignorant. Anyway, nothing like an in terroram fine to make a contemnor comply!
For most all legal problems there are existing legal instruments, though perhaps people are unaware of them?
Anyway, a quicker more reliable remedy would not be to create some new legislation or, WORSE, empowering interventionist judges and politicizing the judiciary. Adjudication should be neutral, unbiased, impartial, and in the interest of justice: and this is why “judicial activism” is so horribly corrosive to the rule of law and justice as well as being anti-democratic and thus inherently illegitimate. If people want a new law but fail to push it through the legislature too bad so sad. But if people want a legal remedy to a legal problem all they must do is a bit of research.
I mean … of course, now is absolutely the time for constitutional innovation. When the rest of the Constitution is being torn up by a bunch of oligarchs, your idea is to tear the last bit of it up for them? Give me a break.
Well, this will not have the political effect you are looking for.
Recall, the challenge is political, not legal. The answer (politically) is to involve Congress, specifically the speaker to form a select committee for immediate advice and consent vis a vis judicial overreach.
Incredible.
I was hoping you would like it.
Without the Speaker and the House, there is this political threat of “being a dictator” (or whatever.
The facts on the ground unfortunately are that eventually the executive will be pushed into telling the court to its face to “pound sand”. And that will not look good. Nomatter.
So for the cost of a little power, this problem can be headed off without blatant nullification.
Of course, I’m a big Jackson fan myself. But that is risky and would take us from bad to worse. Pity if that was necessary.