How acceptable (mainstream/marginal) is the discussion about replacing the human rights with the natural law and to delete human rights chapters? One law professional (who holds a doctorate) has started discussion about human rights vs natural law in our country (which is an Eastern European country). She refers to the book Le Droit et les Droits de l’Homme (Right and the Rights of Man) by Michel Villey and argues that human rights are irrelevant and inconsistent and judicially almost nonsense and that they should be replaced by natural law and rights emanating from natural law. She also proposes to delete the chapters from the constitution that codifies the human rights. I am not a law professional (I am software developer with a bit work in a computer science and I am interested in the formalization aspects of the law e.g. by ontologies and deontic/modal logics), that is why I can not estimate the common sense of her proposal rightly. That is why I am putting this question before the community of more professional people - how (academically) acceptable are such discussions and proposals? Is it the academically acceptable practice to argue about such questions or is it a marginal view? Actually AFAK the sciences are very open to innovations and discussions. E.g. there are proposals for lab-created universes, medical research for regaining youth, computer science research about hypercomputation (going beyond the Turing barrier), etc. Scientific communities are very cautious about such topics, but still the adherence to the research standards and sound methodology (and not the theme or boldness of propositions) is the key factors that decide whether some paper is going to be accepted or not. So - I guess, that maybe law science community is ready for such discussions (natural law replacing human rights) as well?
how (academically) acceptable are such discussions and proposals? Some academic somewhere has probably discussed it, and did not breach strong academic norms by doing so. Is it the academically acceptable practice to argue about such questions or is it a marginal view? It isn't taboo to argue such a position, but it is highly marginal and extreme. It is even more extreme in Eastern Europe (nominally in the civil law tradition) than it is in common law countries (which have more of a natural law tradition), and would be least marginal in the U.S. which has a strong natural law tradition, although it would marginal even in the U.S. Legal positivism (i.e. the law is what legislators and the governmental process including courts and citizen ballot issues says it is), is very strong now compared to prior eras and stronger in civil law countries than in common law countries. The battle between natural law and legal positivism was mostly won by legal positivism by the late 19th century although the debate continued indifferent to the reality on the ground. Philosophically, human rights are often viewed as an enlightened codification of natural law (which sometimes justifies its extraterritorial application), but it would be rare for someone who was a strong supporter of natural law to argue that human rights codifying natural law should be disfavored (really, that kind of reasoning is mostly seen in pre-modern Confucian legal arguments in China as part of the Eastern rule of law v. rule of man argument that tends to favor rule of man on the theory that any codification can be twisted by sneaky lawyers).
How does it not go against the equal protection clause? People had argued poverty is an analogous ground but it is not recognized. You may find the arguments outlined in William Head Institution v. Canada (Commissioner of Corrections) useful to respond to your question, but you certainly do not have to agree with those arguments. The main arguments there include The Charter is not a document designed to protect economic rights and freedoms, in so far that &quot;the worth and dignity of the human person&quot; is not threatened. Poor people form a disparate and heterogenous group without a central personal characteristic. The Charter protects &quot;discrete and insular minorities&quot;. Poverty is not immutable and changing it does not come with unacceptable personal cost; in fact, most people would be happy to become not poor. It is also necessary to understand section 15 or the constitution is not designed to create a &quot;perfect&quot; society. They must be read in conjunction of social and political &quot;progress&quot; or understandings of the society and interpreted so that it is &quot;practical&quot; and &quot;pragmatic&quot; under such understandings. Directing government policies in minute details are not the role of the constitution or the judiciary. Taking to the extreme, the equal protection requirement could require the government to assess all its policies at an individual level to ensure literally everyone does not benefit more than any other person under any law. But most people do not believe that should be done and it will paralyze essentially all governing activities. As another answer has showed, court fees can be unconstitutional for other reasons. But in general, court fees serve an important purpose to fund the judicial system and encourage non-judicial resolutions of disputes so reasonably compensated judges can have a reasonable caseload; in some sense, the courts are self-serving (but also serve the interests of the society in general so everyone is not suing everyone for every small things). With those factors in mind, it appears to me that money is an obstacle that prevents some people from benefitting from the law as much as other people, going against the article above as it creates an unequal benefit of the law, based on the money you make. The above is by no means a justification of barriers of access in the justice system. But it is mostly a political problem that the judiciary should (and does) steer clear of other than for exceptional situations.
For instance, clients often ask them for an assessment of &quot;the chance of X going through&quot;. While clients can make it clear (in writing) that lawyers will not be held legally liable for giving &quot;pure advice&quot;, lawyers often still refuse to give any guidance (even when they clearly do have one in mind). I do this on a regular basis. This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms. Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time.
The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact.
No, there is no obligation to repeal It is common for statutes held to be unconstitutional to be left on the books decades later, and for others which quite likely would be so held if anyone tried to enforce them to be similarly left for even longer periods. It is somewhat less common for state constitutional provisions, but it does happen, and as those commonly take more than a simple legislative act, there is even less motivation to go through the troublesome process in such cases. There are even a few provisions in the US constitution which have become obsolete, but not actually amended away. For example, the so-called 'three-fifths compromise', which counted slaves as worth 3/5ths of a person for computing representation, was effectively repealed by the Civil War and the 13th amendment, but was not formally removed. That section was actually formally replaced by the 14th.
This happened despite the fact that the marriage and Bible verses requirement were almost surely illegal and similar things have happened on and off, mostly in rural courts with non-attorney judges, for pretty much as long as the U.S. has been a country (and earlier). The trick is that the orders take effect unless someone appeals them, and since deals like this are usually a result of a plea bargain which waives rights to an appeal, and even if the result is simply imposed by the judge, one has to consider if taking the case up on appeal, having the sentence reversed, and then having it remanded to the same judge for resentencing would be worse from the perspective of the defendant, given the broad authority of a sentencing judge in a minor case like this one, than simply accepting the illegal sentence. Also, cases that aren't appealed never create precedents and aren't generally available among resources used by legal researchers, so they systemically evade documentation in easily available sources.
For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically: Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep? This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does. Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job. Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to? If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&amp;A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved. For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table."
This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)&mdash; which ruled that peonage was involuntary servitude&mdash; and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school.