Re: Uniquely American

1

Punitive damages, surely. And the impression I got from the bail article was that it's for-profit bail bonds, not bail tout court, that's exceptional.


Posted by: ben w-lfs-n | Link to this comment | 06-12-08 8:46 PM
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2

Punitive damages, maybe?


Posted by: Sifu Tweety | Link to this comment | 06-12-08 8:46 PM
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3

Surely. Putative damages are indeed common in your larger punitive judgments, though.


Posted by: Sifu Tweety | Link to this comment | 06-12-08 8:47 PM
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4

I think, Becks, that you probably meant "punitive" damages, not "putative" damages, since the former is a well-known term and the latter appears to be unusual, if not an actual neologism.

I feel confident that I am the first to point this out to you, and hope that you won't feel in any way abashed at this little slip. No one but you and I will even know it happened, I assure you.


Posted by: JRoth | Link to this comment | 06-12-08 8:48 PM
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5

Now, as to the substance of your post:

Totally.


Posted by: JRoth | Link to this comment | 06-12-08 8:49 PM
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6

What's especially weird is the US system of giving the punitive damages to the one bringing the suite since the damages are not, in almost all cases, to that particular person. Most countries don't use the civil system to try to enforce good behavior, or at least don't use regular people as private attorneys general, but punish the behavior directly via fines or criminal charges.


Posted by: Matt (not the famous one) | Link to this comment | 06-12-08 9:01 PM
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7

All neologisms are unusual, JRoth.


Posted by: ben w-lfs-n | Link to this comment | 06-12-08 9:02 PM
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8

RE 6: Does anyone have a good, concise (i.e., brief) explanation of how our legal system, which started out so reliant on British models, ended up so focused on civil judgment as the prime mover of non-violent-crime justice?

I seem to recall that this was already in place - or at least apparent - by the time of De Tocqueville, but I don't know any further background.

Did it come about due to "frontier justice" - not in the sense of cowboys shooting each other, but in the sense of cowboys suing each other in a context of extremely weak/effectively absent civil authority?


Posted by: JRoth | Link to this comment | 06-12-08 9:06 PM
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9

But not all unusual turns of phrase are neologisms, Ben.


Posted by: JRoth | Link to this comment | 06-12-08 9:06 PM
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10

Sometimes I misread comments, though.


Posted by: ben w-lfs-n | Link to this comment | 06-12-08 9:09 PM
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11

I won, didn't I, guys? I mean, I'm almost certain that Ben's 7 is bitchery unsupported by the text. And I called him on it.

Go, Me!


Posted by: JRoth | Link to this comment | 06-12-08 9:11 PM
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12

And he admits it! Woo!

Although I'm increasingly bothered by the second comma in 11. I added it because it seemed necessary, but it looks very wrong.

Oh, sorry, Becks, were you saying something?

Yes, absolutely - you're right! You definitely were making points more substantive than nitpicking language. No denying that.

Ahem.


Posted by: JRoth | Link to this comment | 06-12-08 9:13 PM
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13

JRoth, you should sue Ben for punitive damages.


Posted by: Aaron Burr | Link to this comment | 06-12-08 9:14 PM
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13 seems like an odd choice for Presidentiality, but thanks for the support anyway, Aaron.


Posted by: JRoth | Link to this comment | 06-12-08 9:17 PM
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15

8: Whatever happened to courts of equity, anyway? You still see the (seemingly) archaic language in contracts, e.g. "and this shall be the party's sole remedy at law and at equity." Is equitable relief still an outcome of court rulings?


Posted by: KR | Link to this comment | 06-12-08 9:18 PM
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15: Replaced by arbitration? I have no idea, but that's the only alternative to law courts I know of.


Posted by: JRoth | Link to this comment | 06-12-08 9:28 PM
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Law and equity were merged way back, so long ago it was long ago even when I learned of it, which was so long ago I can't remember it clearly. The only real importance left is the right to a jury trial, which one has with suits at law but not with claims founded in equity.


Posted by: Michael H Schneider | Link to this comment | 06-12-08 9:33 PM
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Is equitable relief still an outcome of court rulings?

Yes, it can be. Equity courts are gone, but equitable remedies--injunctions, specific performance, etc.--live.

If you value your sanity, Scalia opinions on the topic are best avoided.


Posted by: Not Prince Hamlet | Link to this comment | 06-12-08 11:30 PM
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Is equitable relief still an outcome of court rulings?

Yes, it can be. Equity courts are gone, but equitable remedies--injunctions, specific performance, etc.--live.

If you value your sanity, Scalia opinions on the topic are best avoided.


Posted by: Not Prince Hamlet | Link to this comment | 06-12-08 11:30 PM
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See? That's what happens when you read Scalia on equitable remedies.


Posted by: Not Prince Hamlet | Link to this comment | 06-12-08 11:31 PM
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Pretty much all US courts are courts of both law and equity now, but some of the states have hung on longer than you might expect. Most relevantly, national and international business law is significantly determined by a court of equity: the Delaware Court of Chancery.


Posted by: HC | Link to this comment | 06-13-08 3:23 AM
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I was about to say that in the U.S. legal and equitable remedies are all handed out by the same courts.

I may be totally BS-ing, but I think that trust law deals pretty much exclusively with issues in equity, so it isn't just a question of equitable remedies like injunctions.


Posted by: Bostoniangirl | Link to this comment | 06-13-08 5:20 AM
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There are several states that still have equity courts. Jury triability is the biggest issue in a merged system, but not the only one: we had a case that dealt with international abstention -- that is, dismissing a US case that covers the same subject matter as a pending case in a foreign country -- and convinced the judge that it matters whether the claim sounds at law or in equity.


Posted by: NĂ¡pi | Link to this comment | 06-13-08 6:04 AM
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24

Dammit. That's spellcheck's fault.


Posted by: Becks | Link to this comment | 06-13-08 6:26 AM
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25

Was it Microsoft's spellcheck? Those fuckers.


Posted by: JP Stormcrow | Link to this comment | 06-13-08 6:28 AM
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26

Whether a suit is in law or equity will also determine the options for redress. In my state a petition is supposed to state whether it is "in law" or "in equity," although many don't and neither the clerks nor the judges tend to enforce that rule.


Posted by: Grumps | Link to this comment | 06-13-08 8:31 AM
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27

Whether a suit is in law or equity will also determine the options for redress.

The rule I was taught in law school for whether a cause of action was in law or equity was (1) look to see whether the relief sought was money damages or some other action to be taken by the court; (2) do a full and exhaustive historical analysis of the origin of that and similar causes of action, and whether they were historically in law courts or courts of equity; (3) if it's money damages, it's law, if it's anything else, it's equity.


Posted by: | Link to this comment | 06-13-08 8:34 AM
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That was me.


Posted by: LizardBreath | Link to this comment | 06-13-08 8:35 AM
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29

Is this thread just for the legal ways that the U.S. is exceptional? Because I could bring up shit like peanut butter & jelly, loud talking and heterosexuals having anal sex. If it's gonna be that kinda party.


Posted by: Rottin' in Denmark | Link to this comment | 06-13-08 11:00 AM
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30

loud talking

I saw German tourists in Italy. There's at least one other country that shares that trait with us.


Posted by: apostropher | Link to this comment | 06-13-08 11:06 AM
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31

Brits are actually appalling too, in that respect (been to Amsterdam lately?), but they're English-speaking, so...


Posted by: Rottin' in Denmark | Link to this comment | 06-13-08 11:09 AM
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heterosexuals having anal sex

Wait, what's the claim here?


Posted by: JRoth | Link to this comment | 06-13-08 1:15 PM
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