From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal
Subject: Re: Roe v. Wade upheld by
Date: 25 Jul 92 00:10:16 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Jul24.013713.28081@zooid.guild.org>, goid@zooid.guild.org 
(Will Steeves) writes:
> RA> avoid the apearance of overturning Roe (abandoning stare decisis) that
>                                                        ^^^^^^^^^^^^^
> 
> Layperson alert!  Layperson alert!
> 
> What does that Latin statement mean in English?  Thanks.

 Literally, it means something like "the decision stands" (sorry, I can't 
remember exactly).  What is means is that once a principle has been set forth 
in one case, it should be decided the same way in the next: the doctrine of 
judicial precedent.

example: Andy threatens to punch Bob, and is convicted of assault with a 
deadly weapon, on the basis that his fists are deadly weapons.  He appeals, 
and the court says "Everyone has fists.  The statute about deadly weapons 
must mean something other than what everyone has, otherwise, the 'with deadly 
weapons' clause was meaningless.  Therefore, fists cannot be deadly weapons.  
Therefore, the conviction must be overturned". (the key is, a usually long 
analysis justifying the premise)

Now, Charles threatens to punch Dan, and is convicted of assault with a 
deadly weapon, on the basis that his fists are deadly weapons.  He appeals.  
On the basis of stare decisis, the court says "we've already ruled that fists 
are not deadly weapons (See the case of "Andy v. State"), so the conviction 
must be reversed."  

Now, Edward, a karate expert, threatens to punch Francis, and is convicted of 
assault with a deadly weapon, on the basis that his fists are deadly weapons.  
He appeals. While the court follows stare decisis, it may say, "While we have 
previously stated that a fist is not a deadly weapon (See the case of 'Andy 
v. State'), it should be noted that the reasoning in that case is not 
applicable here.  A karate expert's fists are unlike an average person's 
fists, and supports a finding that there is a significant difference between 
an assault with such a fist and an assault with a normal fist.  While the 
decision in Andy v. State is still valid, it does not control here because of 
these distinctive facts.  The conviction stands."

When they really don't like the prior rule, they do one of four things:

1) follow it anyway, and make a comment in the opinion that the rule really 
stinks, and invite the state legislature to pass legislation to explicitly 
overrule it.

2) Overrule it.

3) Claim to follow it, but seize on trivial distinctions to claim that it 
doesn't apply any longer ("We note that the defendant in this case had not 
recently trimmed his fingernails;  Because of this, it is possible that he 
could have blinded the complaining witness, who may have walked off a cliff 
because of his blindness.  No evidence of long nails was introduced in the 
Andy v. State case, so it does not apply here.")  Continue with each new case 
until the doctrine is gutted.  This is pretty much what has been done to the 
1942 "fighting words" doctrine, for example.

4) Declare that the decision is "confined to its specific facts", which sort 
of sounds like #3, but is really #2.  The decision only applies to people 
named Andy assaulting people named Bob, on odd-numbered Tuesdays after 5:00 
pm while in a movie theatre lobby (or whatever the "specific facts" of the 
Andy v. State case are).

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.