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Old September 22nd, 2020, 12:14 AM #101
jcutonilli jcutonilli is online now
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Quote:
Originally Posted by kcbrown View Post
No. But it is the court's job to hold the litigants to precedent whenever the litigants insist upon a conclusion that relies, or is supposed to rely, on said precedent, or whenever the litigants make arguments that contradict precedent (and that don't show said precedent to be Unconstitutional).


Bolded emphasis mine. Exactly. And my point is that the court is failing to do this. You already quoted the precedent that is supposed to control, and my point is that the court is failing to follow that precedent when it reaches its conclusion that the law passes intermediate scrutiny. It is the court that reached that conclusion, not just a litigant. It is the court that made the decision, not the litigants. It is the court that justifies that decision, not the litigants. However much the court may rely on the litigants to supply it with arguments, it is the court's decision, not that of the litigants.

If you nevertheless insist that the court can use only reasoning supplied by the litigants, then my comment about colluding litigants, and the precedent that such litigants could set, stands unchallenged.


Wait. Is or is not the causation standard for intermediate scrutiny precedent?

If it is, then the court is obligated to follow it whether or not a litigant raises it (because the precedent controls the court, not the litigants). If it's not, then it doesn't matter whether the plaintiff shows that the data doesn't show causation, the court could still claim that the law passes intermediate scrutiny, because causation wouldn't then be a precedential requirement of intermediate scrutiny, and the court could then claim that correlation is sufficient for the intermediate scrutiny standard.

Which is it?



I thought they had, but I'm just going off of a very poor memory. I'd have to read all of the briefs to be able to say one way or the other. I'll presume you're right here until I discover otherwise.


The government didn't cite any data at all? That's surprising. It certainly is a departure from the other cases, so I think you've got a point here.


I certainly agree that any failures on the part of the government need to be pointed out by the plaintiffs. I was always under the impression that in litigation, you need to always bring up every possible argument that your opponent is wrong. I've never understood why counsel wouldn't do so in these cases, and that's why I brought up the question of competence. A competent litigator will attack the opponent's every weakness, and give his opponent nowhere to go. How, then, can the plaintiffs' counsel in these cases be considered anything other than incompetent if they've consistently failed to do that?
The court does not really justify the decision. They validate it. The distinction being where the proof comes from. The court does not supply the proof, they simply ensure that the litigants appropriately supply the proof.

Intermediate scrutiny requires the government demonstrate that the law is substantially related to an important interest. The requirement is to demonstrate a substantial relationship. There is no specific way this needs to be justified. It is left to the government as to how this is done. There is no specific way this needs to be validated either.

The way the government typically justifies this is through data backed up by experts that claim there is a substantial relationship. If there is no dispute over the data/claim, the court does a cursory check of the data and the claim to validate that there is nothing obviously wrong. If there is a dispute with the data/claim then court will evaluate the dispute to the extent of the dispute.

The demonstration of causation is a common way to determine if there is in fact a substantial relationship between the data and the claim. I am proposing to use causation as a way to dispute the claim that there is a substantial relationship. It is not something required by intermediate scrutiny.
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Old September 22nd, 2020, 06:12 PM #102
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3rd Circuit Appeals - Upholds LCM Ban

Quote:
Originally Posted by jcutonilli View Post
The court does not really justify the decision. They validate it. The distinction being where the proof comes from. The court does not supply the proof, they simply ensure that the litigants appropriately supply the proof.
Be that as it may, the court is still a gatekeeper with respect to the decision. "Validation" is meaningless if the court "validates" something that violates its precedent. And regardless, it's still the court's decision. It owns the decision; the litigants do not. It is ultimately responsible for the decision; the litigants are not. Precedent controls the court, not the litigants. The decision itself must therefore adhere to precedent, because the decision belongs to the court and precedent is binding upon the court for the very purpose of restricting the decisions it can make; and it is the court's responsibility to ensure that it adheres to precedent when making a decision, irrespective of the arguments supplied to it.

Otherwise, as I said, colluding litigants could game the system to ensure that the arguments they are colluding on become nationwide precedent despite that precedent being in direct conflict with existing Supreme Court precedent.


Quote:
Intermediate scrutiny requires the government demonstrate that the law is substantially related to an important interest. The requirement is to demonstrate a substantial relationship. There is no specific way this needs to be justified. It is left to the government as to how this is done. There is no specific way this needs to be validated either.

The way the government typically justifies this is through data backed up by experts that claim there is a substantial relationship. If there is no dispute over the data/claim, the court does a cursory check of the data and the claim to validate that there is nothing obviously wrong. If there is a dispute with the data/claim then court will evaluate the dispute to the extent of the dispute.

The demonstration of causation is a common way to determine if there is in fact a substantial relationship between the data and the claim. I am proposing to use causation as a way to dispute the claim that there is a substantial relationship. It is not something required by intermediate scrutiny.
So what you quoted is not precedent after all, then?

If what you quoted is not something that's required by intermediate scrutiny, and is something that is not required by precedent, then it means that the court has no obligation to require a showing of causation, and that means that it can just as easily say that correlation is sufficient.

In light of that, why should we believe that an argument that the data does not show causation will fare any better than an argument that provides alternate data which contradicts the government's data?

Last edited by kcbrown; September 22nd, 2020 at 10:52 PM.
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Old September 23rd, 2020, 11:10 AM #103
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What facts support your assertion that the problem is Roberts? Why did the court take NYSRPA v NYC if Roberts is such a problem?.
My assertion? You clearly do not know SCOTUS nor are you familiar with the expert commentary. Teh core information from the conferences on the ten cases was LEAKED and widely reported in the scotus watching press.

And this was seen from the outcome of the NYSRPA.

And that it is roberts having already made up his mind before hearing the cases that was at issue in the killing the ten cases, this was explicitly stated by Biskupic:
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Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.

It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
You are imagining or spinning that a widely understood reality doesn't exist. Roberts has already decided the second amendment cases -- and clearly signaling he would vote against -- this summer without hearing them
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Old September 23rd, 2020, 12:01 PM #104
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Originally Posted by rascal View Post
My assertion? You clearly do not know SCOTUS nor are you familiar with the expert commentary. Teh core information from the conferences on the ten cases was LEAKED and widely reported in the scotus watching press.

And this was seen from the outcome of the NYSRPA.

And that it is roberts having already made up his mind before hearing the cases that was at issue in the killing the ten cases, this was explicitly stated by Biskupic:


You are imagining or spinning that a widely understood reality doesn't exist. Roberts has already decided the second amendment cases -- and clearly signaling he would vote against -- this summer without hearing them
Exactly. https://reason.com/2020/07/27/chief-...nctive-relief/
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Old September 23rd, 2020, 01:23 PM #105
jcutonilli jcutonilli is online now
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Quote:
Originally Posted by rascal View Post
My assertion? You clearly do not know SCOTUS nor are you familiar with the expert commentary. Teh core information from the conferences on the ten cases was LEAKED and widely reported in the scotus watching press.

And this was seen from the outcome of the NYSRPA.

And that it is roberts having already made up his mind before hearing the cases that was at issue in the killing the ten cases, this was explicitly stated by Biskupic:


You are imagining or spinning that a widely understood reality doesn't exist. Roberts has already decided the second amendment cases -- and clearly signaling he would vote against -- this summer without hearing them
I am not claiming that I know SCOTUS. You and Biskupic seem to claim that you and every other expert does. The only people that definitively know what happened in the conference are the justices themselves. There is none else in the room during these conferences. Any leaks are second or third hand information that cannot be validated.

You have not really answered the question as to why NYSRPA was granted cert it Roberts is really a problem. The resolution of the case occurred because of something NYC did and not because Roberts wanted it that way. Even Kavanaugh agreed that dismissing the case was appropriate.

Have you actually read the 10 cases that were denied cert? I have read several of these cert petitions including Rogers that was cited in the dissent. I believe there were issues with all of these cases.

I suspect that this leak is nothing more than a misunderstanding of what happened in the conference based on an offhand comment made to someone that was not there.
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