THE STRUGGLE FOR JURISDICTION OVER PROCEDURE III

THE BASIS FOR EXCLUSIVE JURISDICTION

     What was the Court's assertion of exclusive jurisdiction in In re Clarification based on?   It was based in part on the fact that the Court had concluded that the wording of the 1957 grant had vested it with exclusive jurisdiction.  Why had it come to believe this, and how is this related to the 1973 holding? After all, the interpretation of exclusive jurisdiction did not follow from the wording of the 1973 revision:  to say the Supreme Court ‘shall’ does not necessarily mean that the legislature ‘cannot’.

      One important basis for the Court’s In re Clarification rationale, alluded to by both Earl and Means, is the fact that legislative authority over procedure is not spelled out in the constitution, whereas since 1957 the Supreme Court’s authority had been.  The Supreme Court subsequently expressly inferred, from this absence of an express grant to the legislature, that the legislature has no constitutional authority over procedure. 23   Although Means considered this inference to be far fetched, he failed to address, other than by a hollow ‘argument from history’ under 2) above, how the express grant to the Court in 1957 did not by implication deny authority over procedure to the legislature. He also failed to address the larger fact that the express 1957 grant rendered prior jurisdictional history obsolete.

                                       THE SEPARATION OF POWERS CLAUSE

     Clearly, an important but implicit element of the In re Clarification rationale was  the Separation of Powers clause:

The powers of the state government shall be divided into legislative, executive, and judicial branches.  No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.24

     The views of Chief Justice B.K. Roberts were instrumental in fashioning the 1973 revision. 25

He had a strong separation of powers perspective.  Regarding one proposal for revision, he said:

Frankly, I am opposed to the proposal as outlined because it tends to make the Judicial Branch almost entirely subservient to the Legislature.  My concept of government is that it is divided between the Executive, Legislative, and Judicial branches and that each is to a large degree autonomous.  The legislature prescribes the rules for its operation, the Cabinet prescribes the rules of operation for the Executive, and the Supreme court prescribes the rules for the Judicial, and frankly, I do not believe there is any more logic in having the Legislature write the rules for the Judiciary than there would be in having the Supreme Court write the rules for the Legislature.26

      Though not explicitly cited, the separation of powers requirement also explains the reference in In re Clarification to State v. Smith and Figgers, supra., a case holding a statute authorizing interlocutory appeals from pretrial orders unconstitutional since jurisdiction to entertain such appeals may be granted only by rule of the Supreme Court, under art.V, s 5(3),. What better example of what J. Roberts referred to above as an attempt to have “...the legislature write the rules for the judiciary?”         

       In re Clarification made quite explicit the separation between the legislative and judicial branches of government based on the separation between their respective powers to regulate subject matters, correspondingly divided into the mutually exclusive domains of substantive and procedural law: “The distinction between practice and procedure, which is regulated by the Supreme Court and substantive law which is regulated by the Legislature, is discussed in a concurring opinion, In re; Florida Rules of Criminal Procedure....” 27    

                                          THE 'PUBLIC POLICY' DIMENSION

     What other tendencies affecting the distribution of governmental functions influenced the In re Clarification opinion?

          Means’ polemical articles claimed that what he called ‘Democratic Principle’ assigns the primary role in determining public policy to the legislature, and that In re Clarification was on a collision course with the Democratic Principle to the extent that public policy issues are as likely to be procedural as substantive. 28

      He described and criticized the Court’s ‘expanding’ role in determining public policy issues, citing Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), in which the Court had construed an existing rule to authorize direct actions by insurers against their insured tortfeasors in part by ‘weighing and measuring certain countervailing public policies,’ and in which public policy was characterized as “...a molding device available to the judicial process by which changing realities and the attending manifested rules of fair play may be incorporated into our corpus juris.” 29    

     Means quoted Justice Frankfurter regarding the relationship of policy to procedure in judicial rulemaking as follows:

...the history of American freedom is, in no small measure, the history of procedure....some clearly procedural rules are of such great general significance that they should not be modified except by a procedure, such as legislation or constitutional revision, that involves general political assent.  The right to jury trial, for example, is in this category.

     The proper boundaries of the rulemaking power must therefore be worked out by processes that go beyond strict legal definitions. 30

     If some rules are so important that they should not be modified except by general political assent, this arguably presents an area of rulemaking lying preponderantly within legislative control.               Means' criticism of the Court’s substantive rights rationale is valid to the extent that the substance/ procedure dichotomy leaves no middle ground in the area of rules having policy implications.        

     However, Means’ criticism, made in isolation from other related trends, that judicial jurisdiction  over procedure has been unreasonably expanding at the legislature=s expense, tells only part of the story, and fails notably to discuss possible causes for this trend.

       Many factors have increased the tendency toward legislative solutions for matters once controlled by case law: the modernization of society, increasingly specialized institutions, powerful interest group legislation, consumerism and consumer protection, broader police power and public policy regulations, and other influences.  

     Portions of fields of “substantive” law, such as tort for example, once controlled almost exclusively by the judiciary, have become, after “tort reform” began, the subjects of legislation specifying rights and remedies, as well as rules of procedure. 

Thus, although Earl had characterized the rule making power as “inherently uncontrollable”; on the other hand, the law making power, exercised to some extent at the expense of historic judicial subject matter prerogatives, has shown itself to be so as well.

            This trend, toward greater legislative control over fields of law historically controlled by the judiciary, may in part account for a trend toward moderating, then toward eliminating, judicial deference. 

          In my view, it is partly within the context of, and in reaction against, this seemingly inexorable tendency, to shift power over substantive law from the judiciary toward the legislature, that the Court’s claim to exclusive jurisdiction over procedure arose, and should be scrutinized.    

                      SUMMARY OF ANTECEDENTS TO IN RE CLARIFICATION

Societal trends, constitutional law issues, inferences from case law, and separation of powers rivalry, have been invoked to try to explain the Supreme Court’s position on its jurisdiction over procedure. 

     Greater judicial control over procedure in Florida began slowly, originally as a response to federal criminal procedural reform. 

     During the 1960s, trends in several different fields developed and converged.  In state constitutional law, the legislature extended control at the expense of the judiciary over areas of law traditionally governed by common law stare decisis.  The policy of  judicial deference to acts of the legislature weakened.  The substantive right rationale was increasingly used by the judiciary to define and divide functions of the legislative and judicial branches of government differently and more rigorously, and to assert that procedural areas were constitutionally off limits to lawmakers.   The separation of powers clause played a new and greater role for the judiciary in defining the nature and extent of its domain against ‘encroachment’ by the legislature.  The legislature took steps to limit 1957 rulemaking jurisdiction previously vested in the Supreme Court, and relations between these two branches of government grew more adversarial and tactical during this time. 

Ultimately, when the legislature formulated the 1973 Article V amendment partly to check ‘unfettered’ judicial jurisdiction over procedure, the Court responded not only that it continued to have exclusive jurisdiction, but strongly hinted that the ground of its exclusive jurisdiction included not just Article V but also the separation of powers clause in Article II.   

1. See generally: W. L. Earl, The Rulemaking Power of the Florida Supreme Court: The Twilight Zone Between Substance and Procedure, U. Fla. L. Rev. Vol. 24, 1971, p. 87 at 88.  

2. Levin & Amsterdam, In Earl, Id. p. 443 n. 12.

3.1955 Fla. Laws 262, ch. 29737; see E. Means, The Power to Regulate Practice and Procedure in Florida Courts, Fla. B. J., Vol.54, Num.4, April, 1980, p 442.

4. Bluesten v. Florida Real Estate Comm., 125 So.2d 567 (Fla. 1960).

5. Means, Id., p. 277; Earl, Id. at 94; Florida Law Revision Commission, Study of Criminal Law and Procedure of Florida 62 (Tallahassee, n.d.(1970).

6. See infra; Broward County v. Surette, 281 So.2d 481 (Fla. 1973).

7. Id. pp. 94, 95.

8. See generally: E. Means, The Power to Regulate Practice and Procedure in Florida Courts, 32 U. Fla. L. Rev. (1980), 442, at 447, 461.

9. Earl. Id. pp. 94, 95.

10 Means, Id., p.277; Earl, Id., p. 94; See: Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla. 1963); Garcia v. State, 229 So.2d 236 (Fla. 1969); Barton v. State, 193 So.2d 618, 626 (Fla. 2nd DCA 1967).   

11. Re Florida Common Law Rule 61, J. T. Wigginton, ANew Florida Common Law Rules,@ 3 U. Fla. L. Rev.. 1 (1950), cited in Wesley Constr. Co. v. Yarnell, 268 So.2d 454, at 455, (Fla. 4th DCA 1972).

12. Earl Id. p. 90.

13. Id. p. 95.

14. Id., p. 91; State v. Furen, 118 So.2d 6, 11(Fla. 1960).

15. State v. Furen, supra., Earl, Id. at 93.        

16. See also: the discussion of the definition of practice and procedure in State v. Furen, 118 So.2d 6 (Fla. 1960).

17. Earl, Id.

18. Means Id p. 472.

19. Means, Id. p. 466.

20. Surette, Id. p. 482 n.1

21. Id p. 459.  

22. Id p. 459-461.

23. Gonzalez v. Badcock=s Home Furnishings Center, 343 So.2d 7, 8 (Fla. 1977).  See also Carmel v. Carmel, 282 So.2d 9, 10 (Fla. 3rd DCA 1973).

24.  Fl. Const., art. II, sec. 3.

25. Means, Id. p. 466.

26. Id. p. 466; see p. 467 n.164.

27. See also, State v. Furen, supra.

28. Means Id p. 476, 477. 

29. Shingleton at 715.

30. Means, Id. P. 477.

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE II

SUBSTANCE VERSUS PROCEDURE

      By 1960, the same year in which Bluesten was decided, the Court adopted a 'substantive right' rationale for its delineation of the boundaries between substantive and procedural law. This rationale’s foundation is that the separation of powers clause implicitly prohibits rulemaking that abridges, enlarges, or modifies any substantive right. 14

     The Supreme Court has defined procedural laws by contrast with substantive laws. Application  of the substantive right rationale to determine the scope of judicial rulemaking has been based in practice on definitions that distinguish procedure and substance: “The validity of  (a rule)  turns on the meaning of  ‘practice and procedure’ in relation to the courts.” 15

     In In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972), in Justice Adkins’ Concurring opinion, cited in In re Clarification, Id., the Court defined ‘procedure’.  Under Justice Adkins’ definition, the domain of procedure is broad:

Practice and procedure encompass the course, form, manner, means, method, mode, order, process  or steps by which a party enforces substantive rights or obtains redress for their invasion.  “Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.   16 

     Earl described the problem of determining the confines of practice and procedure.  The prevalent view earlier in the century had suggested a broad ‘twilight zone’ in which procedural and substantive law were virtually indistinguishable.

      Earl argued, as virtually all writers have, that the substance/procedure distinction is unhelpful,  existing definitions are not useful, and the distinction is misleading except in a few self  evident instances. 17

     Nevertheless, for reasons to be further explored, the Court adopted a sharp distinction between substance and procedure, between substantive rights versus rules, as a way of distinguishing governmental functions and powers.

II.                                   SUPREME COURT VERSUS LEGISLATURE : 

                     IN RE CLARIFICATION OF FLORIDA RULES OF PRACTICE AND

                 PROCEDURE (FLORIDA  CONSTITUTION, ARTICLE V, SECTION 2(a))

     The 1971 Legislature proposed a constitutional  revision, effective January 1, 1973.  Sec.2(a) of the new Article V vested rulemaking authority as follows:

“The supreme court shall adopt rules for the practice and procedure in all courts ....  These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.”

     Shortly after adoption of this constitutional amendment, the legislature enacted several statutes which were obviously procedural in nature.  In declaring these statutes unconstitutional, the Supreme Court in In re Clarification essentially reiterated its position in Bluesten,  supra., without citing it, that its jurisdiction over procedure was  exclusive, in spite of  the new  repeal provision: “The legislature has the constitutional right to repeal any rule of the Supreme Court by a two-thirds vote, but it has no constitutional authority to enact any law relating to practice and procedure.  See State v. Smith and Figgers, 260 So.2d 489 (Fla. 1972).” Id. at 204.  The Court thus expressly excluded the legislature from lawmaking in the area of procedure.

     The holding explicitly divested the legislature of procedural jurisdiction over all laws it had previously enacted.  Procedural portions of these laws could no longer be amended by the Legislature, and were, as it were, ‘frozen in time’.  Means described some of the practical problems with blanket adoption:

Blanket adoption fails to inform practitioners of which statutes have been so adopted.  Nevertheless, those adopted are supposedly thereafter removed from the power of the legislature to amend....The statutory sections continue to be published in the Florida Statutes.  The user has no way of knowing whether a particular section has been superseded or continued as a rule.  More importantly, the legislature has no way of knowing whether a particular section is subject to amendment or appeal.  It has even been conjectured that a particular statute may have been superseded in part and continued in part by such blanket adoption.  Even with specific adoptions, it is possible for the court to change its mind as to whether a particular matter is substantive or procedural. 18

     In re Clarification overruled Ch 73-72 which purported to amend Fl. St. 53.051, a statute which the Court asserted it had previously adopted as a rule by promulgating the 1967 revision of the Rules. The Court stated “the 1967 adoption as rules of the court of all statutes which have not been superseded or may be in conflict with the rules is primarily a matter of convenience or administrative expediency.  Such adoption avoids the question of whether a matter lies within the field of substantive law or procedural law”.   The characterization of the effect of adoption as ‘mere expedience or convenience’ misrepresents its actual consequences, as the Court’s subsequent reasoning bears out: adoption is an assertion that a statute is procedural.   Far from ‘avoiding’ decisions on substance versus procedure, blanket adoption decides matters to be procedural and brings them permanently under judicial rather than legislative jurisdiction (unless legislatively vetoed).  All that blanket adoption avoids is the spelling out of which matters have been brought under the Court' exclusive jurisdiction.   The Court’s further holding bears this out: “The fact that this Court may adopt a statute as a rule does not vest the Legislature with any authority to amend the rule indirectly by amending the statute.  In other words, an attempt by the Legislature to amend a statute which has become a part of rules of practice and procedure would be a nullity.” 

     The Court at this point was discussing a statute which had been adopted by Rule in 1967 under the 1957 grant of rule making authority.  A plain reading of the opinion indicates that the Court was asserting in 1973 that this 1967 adoption as a rule had worked exclusive jurisdiction over this statute under the former, 1957, grant. As this article has shown, this reasoning was merely consistent with its prior holding in Bluesten in 1960.

     Means, writing as a partisan against exclusive jurisdiction in 1980, claimed that D’Alembert, the Chairman of the House Judiciary Committee, ‘mistakenly’ considered the Court’s jurisdiction to be already exclusive in 1971. 19   However, the language of the 1957 grant lent itself to interpretation as an exclusive grant.  Id. p. 447.   Furthermore, D’Alembert was working in 1971 on a constitutional revision intended by him to check the Court’s jurisdiction precisely because no check was thought by the legislature to exist.  Finally, the In re Clarification Court in effect acknowledged that its jurisdiction had been exclusive since 1957, a fact then long indicated in Bluesten.  Put another way, its hindsight that its jurisdiction had become exclusive in 1957 became “20/20” in 1973.  If, as Means asserted, D’Alemberte was mistaken in believing the Supreme Court’s procedural jurisdiction was exclusive in 1973, D’Alemberte was nevertheless in very good company.   

       Means analyzed whether In re Clarification rested on the 1973 revision of article V.  He reported that the revision=s proponents did not intend this result, and that the Court had not relied on the 1973 constitutional revision for its holding. Id p. 467. This conclusion is reflected in Broward County v. Surette, 281 So.2d 481 (Fla. 1973), issued the same day as In re Clarification, dealing with a joinder statute found to be in conflict with a rule.  Surette did not refer to In re Clarification or rely on it, but relied instead on the 1957 grant for holding Fl. St. 455.06(2) unconstitutional, stating that "the revised Art. V, effective January 1, 1973, contains a similar provision in Art. V, s. 2(a)." 20

      Means found ‘implied’ support for the In re Clarification holding in three rationales:

1) that absence of an express grant of  legislative authority over practice and procedure implies an intent that the legislature shall not have such authority; 2) that the authority to regulate practice and procedure cannot coexist in both the court and the legislature, and an express grant was made to the court; or 3) that application of the maxim expressio unius est exclusion alterius to one or the other of the components of the constitutional grant of rulemaking authority implies that the legislature is to be excluded from the regulation of practice and procedure.  21

     Means found all of the  these grounds to be inadequate.  His answer to:

     1) above is that, as to the legislature, a state constitution is a limitation not a grant of authority, and the legislature possesses all authority not expressly or impliedly denied by the constitution.  He claimed that the legislature’s rule making authority was never challenged prior to 1973.

     2) above is rebutted by an ‘argument from history’: the authority coexisted in both branches throughout the history of the state until 1973.  

     3) above is rebutted by the explanation that the maxim should be used only in ascertaining true meaning, and not as a rigid rule of universal application, especially where there is a rational alternative explanation for a provision.  Means found rational alternative explanations for the 1973 grant not excluding legislative rule making.

     However, Means’ analysis under all three is somewhat confounded by his failure to cite or interpret Bluesten.   22

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE I

   Several useful and important articles have been published on this subject since this article was drafted. 

So, it is not the last, or even most important, reference, for this group of topics, even in this one state.         

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE IN FLORIDA

                                                                    PART ONE

I.                                                           INTRODUCTION

          Jurisdiction over procedure has been one of the main frontiers of conflict and accommodation between the judiciary and the legislature for over 30 years.  The Supreme Court has now long claimed exclusive jurisdiction over procedure. The legislature has often failed to acknowledge, and sometimes to accept, this claim.  Important constitutional questions involving the proper powers of these branches of government are at stake.     More practically, lawyers in many fields have long been confounded by the need to reconcile statutory procedures with discrepant or conflicting rules of court. 

          This article summarizes and comments upon modern legislative and judicial efforts to control jurisdiction over procedure in Florida, with special reference to civil procedure, and deals with existing scholarship on this subject. Its scope requires that it can be only a survey of the topic.

      This subject overlaps many areas including state constitutional law, legislation and litigation in disparate fields, and public policy issues.  These areas will be discussed to the extent necessary to illuminate developments in jurisdiction over procedure.  

     Part I covers the subject from the early 20^th Century up to 1973, generally follows a chronological account, including exegesis and criticism of existing scholarship, statutory and decisional law, and contains topical treatment of issues necessary for an account of the ground of the Supreme Court=s assertion of exclusive jurisdiction over procedure.

                            HISTORY OF JURISDICTION OVER PROCEDURE

      A court rule is a judicial order directed against all persons within its scope. 

      Prior to the 1920s, judicial rulemaking in Florida was limited to administrative matters, administration of the bar, and regulation of court business, because such matters were considered within the inherent powers of courts by virtue of the constitutional separation of powers.1 

     Nationally, the movement away from legislative control over procedure came with federal reforms in the 1930s.  The rationale for greater judicial control over rulemaking has been summarized as follows:

Legislatures have neither the immediate familiarity with the day-to-day practice of the courts which would allow them to isolate the pressing problems of procedural revision nor the experience and expertness necessary to the solution of these problems; legislatures are intolerably slow to act and cause even the slightest and most obviously necessary matter of procedural change to be long delayed; legislatures are subject to the influence of other pressures than those which seek the efficient administration of justice and may often push through some particular and ill-advised pet project of an influential legislator while the comprehensive, long-studied proposal of a bar association molders on committee; and legislatures are not held responsible in the public eye for the efficient administration of the courts and hence do not feel pressed to constant reexamination of procedural methods.  Moreover, it must be remembered that a very large part of maintaining maximum effectiveness in the courts does not lie in drastic wholesale procedural reform, but in the necessary minor alterations of single rules from time to time as experience dictates, and such small matters as these inevitably fare badly when they must compete for legislative attention. 

   

 William  L. Earl  summarized the early history of rulemaking reform in Florida as follows:

Basically, Florida followed the national pattern of rulemaking reform, but a decided judicial reluctance to exercise existing rulemaking powers resulted in what has been termed a A checkered history@ of procedural reforms.  In 1940 the Florida supreme court held its inherent powers did not encompass the power to promulgate civil rules of procedure patterned after the federal rules.  Petition of Florida State Bar Assn., 145 Fla. 223, 199 So. 57 (Fla. 1940).  Despite intervening passage of an enabling act, the court in 1945 again rejected an opportunity to promulgate civil rules of procedure. Petition of Florida State Bar Assn., 155 Fla. 710, 21 So.2d 605 (Fla. 1945). Id. p. 88. 2

     In 1955, two years prior to the first express constitutional grant of rulemaking authority to the Supreme Court, the legislature authorized the Court to promulgate rules for practice and procedure in all courts, and such rules were to prevail over any statutes with which they conflicted. 3

     The Supreme Court obtained express constitutional rulemaking authority for the first time in 1957.  Section 3 of new Article V provided: “The practice and procedure in all courts shall be governed by rules adopted by the Supreme Court”.  This 1957 wording was subsequently held in 1960 to have vested exclusive jurisdiction over procedure in the Supreme Court. 4   

     However, previous commentators in 1971 and 1980,  Earl and Ernest Means, believed that it was never so held by the Supreme Court during the time this provision was in force. 5   These authors were apparently, and perhaps suspiciously, unaware of, and failed to cite, Bluesten.   The 1957 Article V was subsequently interpreted to have vested exclusive jurisdiction in the Supreme Court in In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Article V, Section 2(a)), 281 So.2d 204 (Fla. 1973). 6

     Earl’s Article, appearing in 1971, found the scope of the 1957 constitutional grant of procedure problematic. He did not acknowledge that it exclusive jurisdiction, but suspected that it might have.  He had concerns that it was not clearly limited, that the rulemaking power is inherently uncontrollable”, and that the legislature had no express constitutional authority over procedures. 7

     Nevertheless, most procedural legislation after the 1957 revision, and the Bluesten decision, went unchallenged by the Court and belied exclusive judicial jurisdiction, resulting in apparent de facto shared jurisdiction from 1957 to 1973. 8  

    Additionally, the Court failed to adopt rules for several clearly procedural areas during this period, a fact which has been construed as evidence that it did not exercise exclusive jurisdiction.9  

     The Court generally held during the 1957 to 1973 period that rules ‘superseded’ statutes to the extent of conflict between them.  10

      The Court also during this period continued to defer to Aspecial statutory procedures@ under Rule 1.010 where these procedures were claimed to conflict with other rules.  For example, the year after the Court’s constitutional rulemaking authority was made express, Harley v. Bd. of  Public Instruction of Duval County, 103 So.2d 111, (Fla. 1958), dealt with a conflict between a special statutory procedure, a general law,  and Rule A of the 1954 Rules, over the time within which to file a  petition for certiorari. The terms of the special statutory provision were held to control over the general law and over the conflicting Rule, based on the exception found in Rule 1.010.

     The applicability of the 1954 Rules, and subsequent Rules, has been restricted with respect to “special statutory procedures”.  Rule1.010 provides in part, “These rules apply to ...all special statutory proceedings....The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary.”  

The reason for restricting the applicability of the rules with respect to statutory proceedings is evident.  Florida has in its statutes many special proceedings, such as eminent domain and bond validation, in which each step is clearly specified.  The form of the pleadings required therein is relatively simple, and the time for filing them is greatly accelerated as compared to the old common law system of procedure.  Modification thereof by general rules is accordingly unnecessary, and might well produce undesired results in practice.  11

     Earl summarized the 1960s history of rulemaking reform in Florida as follows:

   Modern rules of civil procedure, abolishing the distinction between law and equity, were not adopted by the Florida supreme court until 1967, eleven years after its investiture with constitutional rulemaking authority.  The court’s entrance into criminal rulemaking was the response to the United States Supreme court’s directive in Gideon v. Wainwright.  Criminal Rule 1 was adopted to avoid chaos by regulating the administration of post-conviction relief proceedings of indigent defendants, which Gideon held had been denied the right to appointed counsel.  The first comprehensive body of criminal rules was not implemented in Florida until 1968.  Since most were patterned after existing procedural statutes, they did not represent an aggressive or innovative assertion of the court’s authority. 12

     In 1967 The Rules of Civil Procedure were promulgated.  The order adopting the rules, In Re: Florida Rules of Civil Procedure 1967 Revision, 187 So.2d 598 (Fla.), provided A all statutes not superseded by the rules or in conflict with the rules shall remain in effect as rules promulgated by the Supreme Court.@ 

     What might be characterized as ‘discretionary’ judicial deference to special statutory procedures remained intact under Rule 1.010.

     The wording, “...shall remain in effect...”, also contained in the 1967 Florida Rules of Criminal Procedure, suggested that the legislature continued to have procedural authority in these fields: 

a judicial determination that procedural statutes remain effective as court rules does not negate the fact that legislative revision of such statutes implies an affirmative legislative role in the regulation of practice and procedure.  If the constitutional rulemaking power of the court is in fact exclusive, such legislative actions may be unconstitutional. 13

RE STARE DECISIS

Take a look at the Wikipedia article.

Our system, and most importantly not just the judicial branch of the system, has made sausage out of this doctrine.

(This fact does not come out in the Wikipedia article.) 

One had to have practiced law, seen relevant legislation in a particular field, and also taken a scholarly interest in jurisprudence and in judicial politics, to see something of why that has been the case.

RE DK CURRENT POST

"...Now Justice Thomas, a Catholic himself, is free to believe that he owes nothing of his dignity to his status as a free and equal citizen of the United States, but our whole history and body of law screams the exact opposite.  The greatest and most radical achievement of our revolution, as Tocqueville along with the framers themselves understood, was to create a society without distinctions of rank, in which all were equal before the law.  The abolitionist movement based itself upon that principle as well and it was embodied in the 13th, 14th and 15th amendments after the civil war.  The twentieth century has extended full legal dignity to women.  Under Franklin Roosevelt's leadership, we fought the Second World War to make four fundamental freedoms safe in the world at large.   It seems that Clarence Thomas, had he been an adult living in 1776, would have been a Tory, complaining that the Continental Congress had opened a revolution against an earthly authority whose doings should not unduly trouble any of God's creatures. Fortunately for the United States and the world, those views, while present in the revolutionary era, did not prevail..."

I don't know about all of this.....

 I rather doubt that J. Thomas, in 1776, would have sounded like a 1776 colonial Tory.

RE SUBSTANTIVE dp

The separation of powers structure itself started the branches off onto a bad foot to begin with, setting the stage for later introducing distinctions, such as this, that have not been helpful.

Bailyn's The Origins contains some useful analyses pointing to problems ahead for the American system yet to come, as distinguished from the English political and social system then in place.

RE IRAN DEAL

Trading American Interests

ROBERT REICH RE GOLDMAN GREECE BLANKFEIN

Your creditors can make it better for you, trust me.

Reich's solution, BIG FINANCIAL NGOS:
'The U.S. can help make things better (instead of worse, like Goldman Sachs did). In addition to diplomatic power, the U.S. has voting power in the International Monetary Fund—one of Greece's creditors.'

See Michael Lewis' article Beware Of Greeks Bearing Bonds, 2010.

STRING CROSS

"You had practiced, on this, in preparation for the summer program, hadn't you, my dear?"

"Of course, madame."

"And you had played this piece, among others, correct, my darling?"

"Doubtless, madame."

"Thus, my sweet, I am shocked, shocked, to find that the fingerboard is apparently an inch short!"

"Oh, madame!  I had supposed, I guess, that those notes were to be played on the string, as no other inference occurred to me at that time! Mon Dieu!"

"Thank you, my girl, for that explanation."

RE PAUL PETERSEN

Hypothetical soliloquy:

'They say it will be x hours a week, or a day.'

'It will be y hours a week, or a day. Trust me.'

SHE FLATTED THE FLATS

http://www.thenation.com/article/amy-winehouse-and-black-art-appropriation/

It ends up sounding like nothing.

SELFIE FOR THE DAY

HUGH SCHOFIELD FLORIAN PHILIPPOT SELFIE

BRAVO KRUGMAN CALL IT THE EURO TRAP

Greece needs to fight its way out of what I call 'The Euro Trap'

CLASSIC POST RE FRAGMENTATION

http://bozonbloggon.blogspot.com/2011/11/re-original-sin-and-euro-crisis-krugman.html

AMERICANS NEED TO SEE SOME RUNS ON BANKS TO SEE WHAT THEIR SYSTEM IS REALLY BASED ON

"Oh we have plenty of reserves. And of course, we can always print more."

RE LINCOLN

The Republican platform for 1860 certainly contemplated attacking the slave holding states, especially those that seceded from the Republican held Union.

You can read the Republican platform for 1860 for yourself.

Question: had a non slaveholding state chosen to side with the seceding states and secede, on the principle of a right in the several states of secession, which they all clearly had thought that they had, what would have been the Republican Party's, and Lincoln's, position on that secession?

On the other hand, one had several slave holding but non seceding states.  How do you think they were treated? How should they have been treated by the various factions? How, under the Platform?

The whole thing politically was a disaster. 

See border states (American Civil War) Wikipedia:

"Border secessionists paid less attention to the slavery issue in 1861, since their states' economies were based more on trade with the North than on cotton. Their main concern in 1861 was federal coercion; some residents viewed Lincoln's call to arms as a repudiation of the American traditions of states rights, democracy, liberty, and a republican form of government. Secessionists insisted that Washington had usurped illegitimate powers in defiance of the Constitution, and thereby had lost its legitimacy."

Maryland:

"Union troops had to go through Maryland to reach the national capital at Washington, D.C. Had Maryland also joined the Confederacy, Washington, D.C. would have been surrounded. There was popular support for the Confederacy in Baltimore, Southern Maryland, and the Eastern Shore, the latter two areas with numerous slaveholders and slaves. Baltimore was strongly tied to the cotton trade and related businesses of the South. The Maryland Legislature rejected secession in the spring of 1861, though it refused to reopen rail links with the North. It requested that Union troops be removed from Maryland.^[24] The state legislature did not want to secede, but it also did not want to aid in killing southern neighbors in order to force them back into the Union.^[25] Maryland's wish for neutrality within the Union was a major obstacle given Lincoln's desire to force the South back into the Union militarily.

To protect the national capital Lincoln suspended habeas corpus, and imprisoned without charges or trials one sitting U.S. Congressman as well the mayor, police chief, entire Board of Police, and the city council of Baltimore.^[26] Chief Justice Roger Taney, acting only as a circuit judge, ruled on June 4, 1861 in ex parte Merryman that Lincoln's suspension of habeas corpus was unconstitutional, but the president ignored the ruling in order to meet a national emergency. On September 17, 1861, the day the legislature reconvened, federal troops arrested without charge twenty-seven state legislators (one-third of the Maryland General Assembly).^[27][28] They were held temporarily at Fort McHenry, and later released when Maryland was secured for the Union. Because a large part of the legislature was now imprisoned, the session was canceled and representatives did not considered any additional anti-war measures. The song "Maryland, My Maryland" was written to attack Lincoln's action in blocking pro-Confederate elements. Maryland contributed troops to both the Union (60,000), and the Confederate (25,000) armies.

Maryland adopted a new state constitution in 1864 that prohibited slavery, thus emancipating all remaining slaves in the state."

RE HOMEGROWN EXTREMISTS GO BACK TO BEFORE THE BEGINNING HERE

Reviewing Bailyn's work and that of several others, one can see that the very founding of the US was, unfortunately, based mainly, (although their rhetoric was merely formally oppositional in  tenor), on anti government civil libertarian extremism, combined with local, intra colonial, as well as inter colonial self interests.

Cf. Ideological Origins..., The Origins Of American Politics

RE TPP PRESIDENTIAL POWER OVER TRADE AND DIPLOMACY LINKAGE

It has been the same story, over and over again, for decades.

Terms search: trading American interests

RE TERROR AND CONSENT

RE pages 11 to 13, I could not disagree more with this vision of past or future states of affairs.

The concept of market states, whatever those things may be, being better able to do what nation states signally failed to do, protect civilians, is a frank chimera.

Nation state nationalism is still the bogey of Western nations, among the misguided liberal establishment, long after the intra Western civilizational underpinnings for critiquing it have vanished, ironically, in Western lead globalization. Professor Kaiser apparently shared this liberal, post Milner Group, globalist view, at least back when he wrote Politics and War. See p. 410. 

Unfortunately, Bobbitt's account of his concept of the emergence of the market state or of market states, in Shield, does not make sense either. See eg Ch 10. Weaker states with a stronger presidency, less government but more, a stronger presidency, a new state committed to protecting its civilians, (notice he goes to civilians rather than citizens), all this is not merely paradoxical, as he admits, but frankly nonsensical as an improvement on a nation state concept. 

Rodrik's account of keeping the nation state, over against the onslaught of globalization, flawed as it has been, makes more sense in context, and at least has more of a sense for economic realities than Bobbitt's, which has almost none, even though he calls the emerging order of states market states.

AMERICANS WERE ALWAYS TOLD THEY WON WWII

Then they were told they had won the Cold War.

Surprise.

RE POWER AND PLENTY

Reading this now.

Although this old comment needs to be revised re China, it still has a ring of truth:

Terms search: Historical weight.

RE STABS IN THE FRONT

What could this topic comprise?

audience today snapshot

Entry	Pageviews
Canada	6
Hong Kong	5
United States	3
France	2
Germany	1
Netherlands	1
Poland	1
Ukraine	1

RE WHAT A CHARMING STORY

For those familiar with his jurisprudence work, The Shield, and his book on terrorism.

http://abovethelaw.com/2012/02/a-law-school-love-story-prominent-professor-marries-columbia-3l/

Here was a great interview re Terror And Consent.

Unfortunately, it is over most heads:

http://bloggingheads.tv/videos/1731

RE COUNTERINSURGENCY AND STABS IN THE BACK

"...The American effort was doomed because there was no long-term political basis for creating the kind of Iraq we had in mind--a pluralistic democracy allied with the United States...." DK


Paraphrasing, and generalizing, Kennan's remark re ambassadors: 
"They don't really know, to tell the truth, what a war is 

for...." 

I realize that Professor Kaiser would not put it this way.

RE BAILYN THE ORIGINS OF AMERICAN POLITICS

This is a great short monograph re why our system has never worked very well.

Maybe there are other good treatments this short, I don't know.

RE AMERICAN ECONOMIC DIPLOMACY

Never in the history of human conflict....................

THE FOLLY OF FREE TRADE

This was one of the few enlightened articles, back in 1986, on the subject. Culbertson, HBR. 

I had never read it.

RE NYT TODAY SOBLE

He even calls diplomacy not simply ' diplomacy ', but 
' American economic diplomacy '.

' Political economy ', still a no no here; 

' economic nationalism ', a dirty word term. Rodrik makes contrary noises, but as an economist, he knows he is on shaky ground. 

Thus we have had globalization as an ostensible antidote, since 1919, and things like the EU, etc., even though Wilson, bless his misguided heart, had called,  back in 1919, for self determination........

But ( presidential ) American economic diplomacy, that has always been fine, here.

Terms search: trading American interests

CALL OUR SYSTEM OF AMBASSADORIAL APPOINTMENTS

a monetocracy .

Locus classicus: Ambassador Sembler. Italy.

terms search

ambassadors

Here is Kennan, re our Ambassadors, and also, I think, our diplomats, in general, here:

'FLASHBACKS'

"...ambassador to Moscow. The assignment has nothing to do with Soviet - American relations. The present ambassador, it seems, is leaving.  It is the election year of 1952. For purely domestic political reasons, the administration is afraid to leave the post vacant.  Foreign policy -- policy toward the Soviet Union -- plays no part in the decision.  It never occurs to people in the administration that the position of American ambassador to Moscow has anything to do with policy.  They don't really know, to tell the truth, what an ambassador is for...."  

"They don't really know, to tell the truth, what an 

ambassador is for...." 



Appointments, from what I can see, have most often 

been bones thrown to important presidential campaign 

contributors. That is not what even someone like David 

Brooks would call, in a sober moment, a meritocratic 

system.

RE A BLOW FOR DIPLOMACY

He points out that we recognized the French revolutionary regime, as a good example, presumably, of good, strictly presidential, constitutional, diplomacy.

terms search: presidency, trading American interests, Trading Places, American rebellion, Kennan, etc.

KEYNES CAME DOWN FROM THE CLOUDS

http://www.panarchy.org/keynes/national.1933.html

re soccer corruption

terms search team play

THE SO CALLED ORTHODOX CIVILIZATION AND THE SO CALLED EAST ASIAN CIVILIZATIONS PLURAL

in effect, won the 20th Century Western Civilizational Wars, by defeating Western Civilization at, and after, the fact. 

The Orthodox world won, over Western Civ, outright, at the end of WWII. 

East Asia's victory, over the West, came somewhat later, with Cold War concomitant Western Civ globalization.

This has not been appreciated by most anyone in the West, other than by people like Huntington and his progeny, because of Western Civ's now defeated utopian universalist multiculturalist ideology.