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From: cosell@bbn.com (Bernie Cosell)
Newsgroups: comp.society.futures
Subject: Re: Congressional nasties...
Message-ID: <62938@bbn.BBN.COM>
Date: 24 Feb 91 15:48:16 GMT
References: <5RDuw1w163w@zitt> <62555@bbn.BBN.COM> <103@s5000.RSVL.UNISYS.COM> <3904@casbah.acns.nwu.edu>
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Distribution: alt.drugs, comp.society.futures
Lines: 49

mccoy@casbah.acns.nwu.edu (Jim Mccoy) writes:

}After seeing this article I decided to wait a while and let someone
}else correct it, but since no one else has I suppose I should.

}In article <103@s5000.RSVL.UNISYS.COM>, gray@s5000.RSVL.UNISYS.COM (Bill Gray x2128) writes:
}|> In article <62555@bbn.BBN.COM> cosell@bbn.com (Bernie Cosell) writes:
}|> >cb@zitt (Cyberspace Buddha) writes:
}|> >
}|> >...  What HR4079 simply "directs" the lower courts [as if it had
}|>                                                          ^^ ^^ ^^ ^^^
}|> >the power to do so:...
}|> 
}|> Bernie does a good job of debunking some semiliterate hysteria about
}|> HR4079.  However, I wonder if Congress does not, in fact, have the power
}|> to direct the courts with respect to class action suits.  Consider the
}|> following, from an obscure legal document (i.e., the Constitution of the
}|> United States):
}|>  
}|> [text of section II of article 3 of the U.S. Constitution granting
}|> Congress the right to limit the appellate jurisdiction of the
}|> Supreme Court deleted]
}|> 
}|> I know some attempts to place certain kinds of cases outside the courts'
}|> reach have themselves been ruled unconstitutional.  I do not know the
}|> details of such attempts, or what flaw the court found in them.

}They didn;t find a flaw in them.  In fact, the U.S. Congress _has_
}limited the jurisdiction of the Courts and placed certain cases
}outside of it's power....

This is all correct, but is not relevant to the case at hand.  I admit
I was a bit flip in my critique [but then, this isn't misc.legal and I
was responding to a MASSIVELY ill informed and misleading essay].  On
this specific topic, as far as I've ever been able to see [although I
admit that my research on this has been somewhat cursory], Art III Sec
2 Cl. 2 refers to _jurisdictional_ matters and _procedural_ matters,
but not *legal* matters.  As far as I can unearth, the very idea that
Congress could tell the SC "this is still in your jurisdiction, but if
it comes before you, you may NOT use the following logic in deciding
the case", but that is precisely what HR4079 purported to do.

I will agree that that could be argued to be an attempt to break new
Constitutional ground, but the idea that the appearance of that wording
in the bill actually "made it so" [and so _succeeded_ in finessing the
Constitution] is not correct.  That kind of limitations are not, now at
least, within the powers of Congress.

  /Bernie\


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