freebsd-questions Digest, Vol 200, Issue 60
bennett at cs.niu.edu
Thu Jan 24 03:54:11 PST 2008
On Wed, 23 Jan 2008 22:41:12 -0600 Paul Schmehl <pauls at utdallas.edu>
>Content-Type: text/plain; charset=us-ascii; format=flowed
>--On Wednesday, January 23, 2008 6:29 PM -0800 Ted Mittelstaedt
><tedm at toybox.placo.com> wrote:
>>> He disobeyed a court order. That makes him a criminal.
>> Only if the court in question has jurisdiction over him. The US
>> courts found in favor of an anti-trust lawsuit against DeBeers
>> around 20 years ago I think it was and the DeBeers family finally
>> decided it was too much of a nuisance to avoid travelling into the US
>> so they settled for some paltry 300 million this year (if you have
>> ever bought a diamond and you still have the receipt you can
>> get some settlement money)
>> Did the US court have jurisdiction over a corporation that has no
>> footprint in the US? They thought they did. DeBeers didn't. What
>> do you think?
>Doesn't matter. In the US, they were in violation of the law.
It is important to keep in mind from the outset here that the Supremes
have ruled in the past that a statute that is repugnant to the Constitution
cannot be law and that no person can be obligated to obey it.
>> How would you like it if some kangaroo court in Iran issued a judgement
>> against you? Would you consider yourself a criminal?
>In Iran? Yes.
>>> what he was
>>> trying to do was "right" or not is irrelevant.
>> Absolutely untrue. It is at the heart of the issue.
>Absolutely not. Right or wrong is irrelevant in a court of law.
>> Once the court
>>> told him to
>>> stop, he should have stopped.
>> No. Once ALL AVENUES of appeal are exhausted AND a judgement was
>> found against him, only then if he disobeys the final court order
>> then can he be considered a criminal.
Even then, isn't it necessary for the court to charge the violator
with criminal contempt of court first, then to schedule and hold a trial
on the contempt charge?
>If you get a TRO *during* a trial, and you violate the terms of the TRO,
>then you are a criminal by definition. The outcome of the case is
>> And good people often forget that courts are nothing more than another
>> arm of the government, and quite often the solutions that come out
>> of them are a result of political negotiation and compromise - exactly
>> the same way that the legislative arm solves problems.
>They *should* never be.
That is certainly true, but history bears many examples that diverge
from the ideal world in this regard. We can see in the present day that
the courts at all levels have been upholding the trampling of constitutional
limitations upon the powers of both the legislative and executive branches.
Even when they rule against those excesses, they often do so in a way that
is designed to increase the reach and power of the judicial branch itself.
>> You should read some history, there's been a lot of bad law that
>> has been overturned. It never would have happened if people like
>> Rosa Parks hadn't "committed criminal acts" from your viewpoint,
>> and ignored court-supported orders and laws.
>I totally agree, however, Rosa Parks *did* violate the law and *was* a
>criminal by definition.
>> You cannot sit there and say that just because someone is a
>> criminal they are bad.
>I never said anything about bad. It isn't a moral judgement. It's a legal
> Nor can you say that just because someone
>> is not a criminal that they are good. Look no further than the
>> current occupant of the White House for that. What is criminal
>> in a good society is defined by what is "wrong"
>No, what is criminal in a good society is when you violate the law.
>Whether or not the law is "good" is irrelevant.
However, in the English legal tradition and its descendants, one must
either plead guilty to a crime or be convicted of a crime to be a criminal.
Note that in the U.S. criminal trials are required by the Constitution to
be conducted by a jury of peers, thus preserving a tradition going back at
least 1500 years. (It is likely much older, but the Saxons had no written
language at the time they brought trial by peers with them to the shores
of Anglalond, which makes it difficult or impossible to trace back much
further.) The courts routinely ignore this constitutional requirement by
conducting what are referred to as "bench trials", wherein the judge decides
upon the guilt or lack thereof of the defendant(s), but that is an discussion
for another list at another time. The point here is that the peers are
intended to be the only persons who may find a defendant guilty, and they
may decide not to do so for whatever reason or reasons they may choose. The
U.S. Constitution fixes a flaw in the legal systems of England, Canada, and
perhaps others that have branched off of the English system in that double
jeopardy for the same crime is prohibited. Once a jury of peers finds a
defendant to be "not guilty", that finding is unreviewable and irreversible
by any court. So if a sizable portion of the population dislikes a statute
or believes it to be invalid under the Constitution or thinks the statute
is being inappropriately applied, they can refuse to convict. The next
defendant to be tried under the same statutory provision will, of course,
be tried by a different jury of peers and may obtain a different result,
but the tradition of trial by peers has ended up in practice bringing down
many a bad statute here (e.g., alcohol prohibition, Fugitive Slave Act, etc.),
which is probably the motivation for judges now refusing to advise juries
of their power and even lying to juries by telling them they do not have it.
> Sadly, that
>> does not always happen.
>> If you buy a DVD and make a copy for your own use according to
>> DMCA you are a criminal. However if you buy a videotape of the
>> same movie and make a copy for your own use you are not a criminal.
>> Clearly, both actions are morally "right" They are almost the same
>> action in fact. But one is illegal the other isn't. Can't you
>> see here that the problem isn't the action but the law?
>Of course, however, if you copy the DVD you have violated the law and by
>definition you are a criminal. Now, you may decide your actions are right,
>but you need to do that with the full knowledge that you *could* be found
>in violation of the law and you *could* go to jail. To violate the law and
>then whine that it's unfair is childish.
>> In this lawsuit, the worst you can say is that both parties,
>> the spammer and the spamfighter, are in the wrong. But I fail to
>> see how the spammer can be "right" and the spamfighter is "wrong"
>Didn't say he was wrong. Just in violation of the law.
>> You can, if you wish, argue the spammer is "legal" and the
>> spamfigher is "illegal" But, this simply illustrates that the
>> law is bad - and for many people it is a moral duty to violate
>> bad law. And I for one, am very glad that they feel this way.
>Again, there's absolutely nothing wrong with that *so long as* you are
>fully willing to suffer the consequences. As with Rosa Parks, you may
>succeed in illustrating how unfair the law is and getting it changed, but
>you won't do it without paying a personal price. Ignorance of the law is
This is, unfortunately, very true.
The courts have ruled thus, indeed, but as William Penn noted, that
if the law requires one to be a lawyer to understand it, then it is not
reasonable to expect the common man not to be ignorant of it.
Now...all of the above thread and discussion are *way* off topic for
this list. This is my first and only posting in this thread on this list.
Any who wish to continue it should take it elsewhere.
Scott Bennett, Comm. ASMELG, CFIAG
* Internet: bennett at cs.niu.edu *
* "A well regulated and disciplined militia, is at all times a good *
* objection to the introduction of that bane of all free governments *
* -- a standing army." *
* -- Gov. John Hancock, New York Journal, 28 January 1790 *
More information about the freebsd-questions