Discussion On Case Law

[retmar]

For some time now, the term "Case Law" is being used to where if one cites a specific law, a respondent wants to know what case law supports their claim. This has even happened to me in PM's. I'm asked a question. I respond with the proper statute, and quote the contents. Then I receive a reply asking for case law to support what I referenced. This is not how Case Law works.

It would be unreasonable to even believe that the intent of Congress in writing the FDCPA and FCRA, for example, was their intent meant that each section of each written statute requires a decision from a higher court before it can be true. That is so ridiculous in itself, as it could, for example, cause someone to consider that why waste taxpayer money to write laws that cannot be enforced.

Let's begin with this. Congress wrote the FDCPA and FCRA due to the "unprofessional" (yes, I'm being polite) actions of CA's, JDB's, and Attorneys, for starters. It is clear to any reasonable person that what was written was done so for the sole purpose to set guidlines for the collection of delinquent debt. It is also understood that those who actually penned the verbiage did so to the best of their ability in that their prayer was that the contents would suffice in determining what must take place. Unfortunately, as we all know, this is not always true. Fortunately, we have Appelate Courts for this, or, the Supreme Courts. By this, if a party finds the specific statutes to be too vague, or too broad, they have the right to appeal to a higher court so that the Congress' intent can be discussed, considered and a fair decision made.

What I've done is go to the source itself and asked for how Case Law works. As many know I have a very close and dear friend (since 1950) who is of the legal profession. He has been in this field for over 30 years. His primary work is taxes, busiensses, etc. But, if any need other assistance, he will handle the matter for them.

Anything in quotes are from him. All other is mine. Yes, I've studied law myself, beginning in 1972. Though I never went to law school itself after graduation, I've stayed with it. For more than 7 years now, I've been studying our whole legal system, beginning with the Revolution up to today.

The United States of America has but only one true law, which is known as The Common Law, or, the law of the people, "and by common use still remains the backbone of our legal system. Next we have statutory law which are the laws written by our Congress and State Legislatures. The statutes are restricted by the Constitution (a written law may be held unconstitional and thus void). The courts get to interpret the statutes subject to the Constitution and that is where Case Law comes into play. Historically is a decision has been made by a prior court, it is said to be "stare decisis" and that is the controlling law as interpreted, but, only so long as the facts are the same or so similar that a different interpretation would be too different. We are only allowed to rely on "published" case law of Appellate Courts, so the basic trial courts can decide cases, but their decisions are not published and therefore not binding on other cases, except in the same court. Not all appellate cases are published, only those where the justices determine the case is worthy of being made appicable to other cases in that jurisdiction. If a state makes one decision, another state could rule differently under their interpretation of their state's law. If it is an important case between states or as to a Federal question of law, then the U. S. Appeals Court decisions can make the law, or ultimately, the U. S. Supreme Court. Normally the Feds will not mess with on state's laws unless it has important Federal ramifications, like Interstate Commerce."

"Many appellate cases are overturned later due to changes in the laws and changes in the courts, so one cannot automatically rely on prior decisions, as they may be overturned. Most of the time the rulings are different because the facts are different. SO IT IS ALWAYS APPROPRIATE TO ARGUE FOR THE RULING YOU WANT EVEN IF THOUGH THE LAW APPEARS TO BE DIFFERENT, AS YOU MAY STILL WIN. IF YOU DO NOT RAISE A DEFENSE IT IS TOO BAD AS THE JUDGE CANNOT RAISE IT FOR YOU. IF YOU DO NOT PROPERLY OBJECT TO THE OTHER SIDE'S EVIDENCE, THEN YOU CANNOT LATER TRY TO GET IT THROWN OUT. SO THE LITIGANTS MUST BE DILIGENT IN RAISING THEIR DEFENSES AND OBJECTING TO WHAT THE OTHER SIDE DOES.