Why did Justice Antonin Scalia advise not talking back to judges, not even politely? I copied and pasted the transcript from YouTube commencing at 91:04, the end of the 2007 Ames Moot Court Competition. As you can read, the English barrister's comeback was polite — no profanity or sexual language. But why did Justice Scalia still disadvise this comeback? What exactly is wrong? The other thing I think you all did quite well — you have to know how to handle the boorish judge. Trust me, I was no nastier today than I am usually. And you have to know how, with composure, to respond to that judge, you know. You can't respond in kind. There's a wonderful story that I think Justice Jackson used to tell about the argument in England, where at a certain point, their arguments went on for days, or still did, until recently. The judge looked down at Counsel, He said (ENGLISH ACCENT) Counsel, I've been listening to you for three hours, and I'm none the wiser. [LAUGHTER] And the barrister, who probably lost his case, said, (ENGLISH ACCENT) I expected that, my Lord. But I thought you might be better informed. [LAUGHTER] You'll have to resist making those comebacks to the judge who is torturing you.
It is a joke to illustrate the advice that just because the judge is rude to you you should never be rude back, and definitely not with a subtle rudeness couched in polite terms. In British English if you ask someone for an explanation of something and their reply does not really provide any enlightenment at all, and certainly no real explanation, you might say &quot;I am none the wiser&quot; meaning that your understanding of the matter has not been increased by what you have been told. But the usual meaning of &quot;wiser&quot; is to do with a general characteristic someone has. - e.g. &quot;more experience made him wiser person&quot;. Saying that someone is wise in this sense is a compliment and saying that they are unwise is a criticism. Saying that someone's understanding of a matter has increased - that they are better informed - is often neutral - just a fact. Essentially what the judge is saying is that despite days of supposed explanation by the barrister, the barrister has not really come to the point and explained anything - the judge is criticising the barrister. The barrister, in retaliation, pretends to take the phrase &quot;I am none the wiser&quot; said by the judge literally (rather than idiomatically) as if the judge was saying &quot;I am a fool and you have not made me any wiser&quot;. The gist of what the barrister is saying is &quot;you are a fool and trying to make you wiser would be a hopeless task but I was trying my best to explain this matter to you in words even a fool like you would understand&quot;.
If one day the child goes around to the father's house, perhaps in a state of upset, and says, "That's it, I'm staying," what is the legal position of the father? An eleven year old child really has no say in the matter. A judge in a custody case may consider what the 11 year old has to say but is unlikely to give it much weight. (In contrast, a judge is likely to give a lot of weight to the views of a child who has a job, who is doing O.K. in school, and is a year or two from becoming a full fledged adult.) This is up to his parents to resolve absent circumstances not present here (e.g. the child has made bona fide allegations of child abuse, or the parents are both incarcerated). And, if the parents can't resolve the dispute, it is up to a court in a case where parenting time is at issue (probably either a legal separation or a divorce in this case). For example, while (as noted below) the police will not generally drag a child kicking and screaming to the other parent without a court order, if the child is at his father's house, the father can absolutely drag the child kicking and screaming to the child's mother's house, no matter how much the child doesn't like it. Moreover, while the father will not be violating any law, if he does not do that, a child custody judge is likely to look dimly upon a parent who intentionally withholds visitation from another parent without good cause, when the court considers what kind of child custody arrangements to put in place. And, the court has extremely great discretion in these matters. The judge is also likely to be pretty unhappy with both of the parents for failing to be capable of communicating or cooperating over child rearing related issues, because they are apparently so focused on not getting along with each other over their issues with each other. In particular, if the mother calls the police claiming "child abduction," what will be the police position? Will they come to the door of the father? Will they drag the child kicking and screaming back to mother's house? It is not generally illegal for a married parent in a situation where there is no child custody order in place to have that parent's child with them over the objection of the other married parent. Absent a court order to the contrary, the police will probably call this a "civil matter" and will be unlikely to take any action until there is court guidance, absent exigent circumstances like evidence of recent not previously adjudicated claims of child abuse or neglect. The way to resolve this would be with a court filing of some sort seeking to resolve the parenting time issue, if necessary, on an emergency basis. Post-Script Whether or not the parents want to end the marriage, this situation is long overdue for court intervention. I've had couples who "pull the trigger" too soon, but this would not be a case of that type. Either the father or the mother needs to find a solicitor (if at all possible to afford that) and get the court system involved. If there is a breakdown in communications over matters related to the child, and the child is not cooperating in the face of an ambiguous parenting situation involving two parents who can't communicate about their child, the situation is out of control. Prompt court action could prevent a more negative outcome in the future by creating stability and structure in the situation.
Judicial immunity means only that the judge can't be sued by the people negatively affected by his decisions, even if they were made corruptly. The idea is that if this were possible, then anyone who lost a case before the judge could sue him, perhaps falsely claiming that he was corrupt. Defending such suits would be a major nuisance and expense for the judge, and some fraction of such cases might be wrongly decided against him (courts do err sometimes). So, a party who said (or insinuated) to the judge that "you'd better decide my case in my favor or else I'll sue you" would have a credible threat, and the judge might be intimidated into giving in. This would certainly not be in the public interest, and so judicial immunity removes this possibility. It's a trade-off: the harm done by false accusations would outweigh the good done by legitimate lawsuits against truly corrupt judges, and you can't allow the latter without creating the possibility of the former. However, judges can still be held accountable for corruption - just not through the mechanism of lawsuits by the affected parties. This is addressed within the Dennis decision, in the paragraph right above the one you quoted: But judicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from 1983 damages actions, but they are subject to criminal prosecutions as are other citizens. O'Shea v. Littleton, 414 U.S. 488, 503 (1974). So a corrupt judge can still be prosecuted by the state: removed from his job, fined, sent to prison, etc. But the decision to prosecute him would be made by a state prosecutor, who has no personal stake in matters before the court, rather than by a potentially disgruntled litigant.
If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked.
There are two common defenses to defamation (there are others): That what you said is true. That what you said cannot be reasonably interpreted as a factual claim. If after examining the totality of the circumstances, a fact-finder (judge or jury) sees your statement to be an expression of opinion rather than a factual claim about the subject, you would not be found to have defamed the subject. The opinion defence doesn't have a bright line rule. In your example, I think it is clearly on the side of opinion. However, if you were to say something like "Douglas Dunce, Apple's Chief Engineer, has an IQ of 76", that would be almost certainly be deemed a factual claim. The leading case here is Milkovich v. Lorain Journal Co. The court held that "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected". Other summaries of this defence: http://www.defamationlawblog.com/2009/01/fact-vs-opinion-setting-the-record-straight/ http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2011/opinion-defense-remains-str
If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear.
The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.")
NO If there were no extenuating circumstances (or they should not have been looked at as they were not presented), the losing party can petition for reconsideration and appeal the decision as a matter of law. The Judge/court of appeals then reviews the case and decides if the verdict stands. But you can't plead new facts at that stage, so if the losing side's lawyer messed up the case, that's up to them, not the judge. If it was a criminal case, the victim can't force the DA to appeal either, though they can try to get an injunction in related civil cases. But no person, or for the matter neither party, can sue the judge at all for misbehavior on the bench because judges have judicial immunity. Even when they did something so out of scope, such as a judge ordering from the bench that a lawyer shall be beaten up by police because they missed a court date, they get immunity as they acted as a judge (Miles v Waco). Indeed, let me quote from the first section of that SCOTUS case (emphasis mine): A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson *10 v. Ray, 386 U.S. 547 (1967).1 Although unfairness and injustice to a litigant may result on occasion, &quot;it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.&quot; Bradley v. Fisher, 13 Wall. 335, 347 (1872). ... Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 (&quot;[I]mmunity applies even when the judge is accused of acting maliciously and corruptly&quot;). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). In the example OP posed nobody, not even the police, becomes liable for the actions of Bob but Bob himself: Police does not need to help you, even if they know for a fact that something is happening right now. There's a huge error in the case as presented by OP You start to work up a case, and points 1 to 3 are fine. But you start to get off the rails starting in point 4: The evidence does not say that someone is to be locked up, it only indicates what the facts of the case (upon which is to be decided) might be. The decision if someone is to go to jail or not is only up to the verdict - which happened in dot 5. Dot 5 however indicates that the judge looked at extenuating circumstances which is also evidence, so point 4 is presented incompletely. Let me present a more complete version of point 4: Evidence from side A was presented, as was other evidence by side B. To the victim, it seemed that side A (either her attorney or the DA, not clear from OP) had the better evidence and might get a conviction on side B. But the Judge did weigh the evidence differently than the observer and declared a verdict favoring B in point 5 to the dissatisfaction of the victim The missing bullet between 5 and 6 (a motion for reconsideration or appeal) does not seem to happen. Assuming it did not happen, because months go by, the verdict becomes final and the case becomes res iudicata - the case is closed. Point 6 is a different and separate crime. The case files of the earlier case can get pulled to show a pattern of behavior, but not to re-adjudicate the earlier case. Finally: Point 7 does not matter before the law: If-Then hypotheticals can't be adjudicated. Because the counterpoint to the presented argument in this point is: Would the lawyer of Side A have filed for reconsideration and/or appeal, the verdict would not have become final and waiting for the verdict from the court of appeals, Bob might still await the next step of the trial. tl;dr As presented, the rundown of the hypothetical case does not present anything that the judge could be liable for but instead shows that side A did not take the necessary steps to ask for reconsideration or file an appeal to the verdict they didn't like. The separate incident opened a new case, the hypothetical that side B would sit in jail is conclusory.