From: lkk@panix.com (Larry Kolodney)
Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
Organization: The Devil's Advocate
Distribution: usa
Date: Sat, 23 Jan 1993 07:44:37 GMT

In <1993Jan21.040853.28616@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:


>The English Court of Equity and the federal courts under Article III
>both have jurisdiction over (i.e. the power to hear and rule on) such 
>cases. But jurisdiction doesn't say anything about how such cases are
>to be determined, simply that the court may, in some way, rule
>on them. In the case of the Court of Equity, this included making
>Common Law. Since the Constitution specifically gives the federal
>courts "judicial" power but _no_ "legislative" power, I conclude
>that the federal courts may not create law (a legislative power)
>in order to settle cases.

"Judicial" simply means the powers which are rightfully exercised by
judges.  Saying that Courts only have judicial power is not saying
very much, unless you understand what was meant by "judicial power."
Now you have just asserted, based on nothing at all, that "judicial
power" somehow excludes "making law."  Yet, as you ackowledge, the
framers specifically refered to suits arising under the English
categories of "law" and "equity."  This clearly evinces a desire on
the part of the framers for the American Court system to have
historical continuity with the english system, which as I explain
below, was very much based on judges "making law."

Lets look at the two categories of suits which the constitution
permits federal judges to rule upon.  The first category is "law."

Under the English system, suits at law were suits for money damages
under either statutory right, or traditional forms of action
(tresspass, case, assumpsit, etc).  "Equity" on the other hand,
refered to cases where the matter involved more than money damages
(i.e. injunction), or didn't fit into one of the traditional
categories.  Courts of Law would only issue judgment for the plaintiff
if he properly pleaded a "legal" claim.  Courts of Equity, on the
other hand, used the sense of justice of the jurist to craft a
solution which seemed "fair."

In other words, Equity Judges played the role of a kind of conscience
of the community, who embodied the community's sense of fairness and
justice. Jurisprudence was far more than applying dead law, it was an
evolving system of rules reflecting the prevailing ethos of the
society.  Each time the equity judge acted he attempted to extend what
he perceived as the general principles of the English law and society
to the particular facts at hand.  In an Equity case, in the absence of
written law covering the problem at hand, the Judge had not choice but
to take previous Equity decisions, analogize them to the facts and
hand, and issue a ruling.  This is just another was of saying that the
judge had to make law.

Now why do you think that the constitution specifically makes
references to suits in equity if it meant to abolish the Court's power
to exercise equitable jurisdiction as I've described it?



-- 
larry kolodney:(lkk@panix.com) 
_(*#&)#*&%)@(*^%_!*&%^!)*&#+!*&$+!?&%+!*&^_)*&#%)*&^%#+&
The past is not dead, it's not even past.   - Wm. Faulkner