All right, Lawyer talk podcast, off the record, on the air, taking a comment today and using it to create a discussion about what is a law and how are laws passed, et cetera.

So in one of our recent videos, we were talking about officer safety, and one of the commenters said case laws are not laws.

Black robe wearing ftards don't pass laws.

Only Congress has the ability to pass laws, I mean, irrespective of the language involved.

It's an interesting comment because, and it deserves some discussion about how our legal system works and what are laws and what aren't laws and what has more precedential value, et cetera.

We basically, this hearkens way back to, say, the medieval times when we had common law.

And common law was basically law that was common to the land.

It was known, it wasn't written down.

There weren't necessarily statutes written.

And I could give lots of legal history here, but I'm not going to dig into it.

But it would be something like you would go to court, a manor court in medieval times, and the manor court had decided a similar issue before, and so it was going to do the same kind of thing in your case.

So because when Bob Jones stole 10 chickens, this happened, and they were somebody else's chickens, whatever it was.

Now we're going to apply that same standard here, but then another case would come along that might push those facts a little bit further in a certain direction.

And we would have to say, okay, we did it this way in this case, but this next case is similar, but a little bit different.

So we're going to apply it, but then we're going to take it a step further.

And you can imagine how the law just sort of moved at this glacial pace.

And we created the common law.

That's the common law.

And it was both criminal and civil, meaning suing people as well as people getting in trouble.

And we would have this sort of common law understanding of what the definitions are or were.

So say, like a murder is that in common law was the taking of one human life by another without mitigation, justification, or excuse.

That would be the common law definition of murder.

Well, fast forward a couple hundred years, or maybe even longer, a thousand years.

And now we have the legislative branch of government, who, as this commenter says, they pass laws and they do Congress.

So in the United States system, we have Congress at the state levels.

All states have some version of their legislative branch of government.

In Ohio, we call it the General assembly.

And the General assembly convenes in theory, and they pass laws and Say the criminal code, they now define murder, purposely taking the life of another.

And then they define each term, like purposely, what that means.

And then if there's self defense, there's statutory law on what self defense is.

And these are all the term we often use is they've codified or made a code out of some of the common law stuff.

So that's the backdrop.

And then we're going to throw into the milkshake the constitutional standards here in a second.

But let's first talk about how the common law or black robe law, as our commentator suggests, fits within the statutory law.

No matter how hard the General assembly here in Ohio or Congress tries to write definitions, you still got these lawyers out there, you still got these prosecutors out there, defense lawyers and litigants, and we're going to press that definition.

We're going to say, all right, self defense applies here even though it's not specifically defined.

Even if there's.

Even if there are.

Even if it's specifically defined, we're going to say we're going to apply that definition a little step further or half a step further.

We're going to push the bounds of the definitional structure.

And.

And that is the black robe law that this guy's talking about.

Because what happens is, say, I'm in court and I want to do something, or I am making an argument about something.

And the judge says, nope, sorry, Palmer, not this time.

Overruled.

You know, we're not doing it that way.

Denied.

Request denied.

I'm not going to instruct the jury of this way because I think the statutory law means something else.

I get to go to the court of appeals, and the court of appeals will say, look, we agree with Palmer, or we don't agree with Palmer.

We agree with the judge, we don't agree with the judge.

And then they interpret what the statute says.

They, being the courts, interpret what the statute says.

Now, often, often in these decisions, you will see language like if the General assembly wanted to do it this way, they would do it well.

Or you'll see language that says, we're going to interpret it this way because this is a plain meeting.

If the General assembly doesn't like it or if the legislative branch of government doesn't like it, well, they can go and convene and they can change the law and they can make it the way they want it.

I've worked on lots and lots of gambling cases.

Believe it or not, here in Ohio, they put out these first skill games and then gaming machines and stuff that's not at the casinos.

And, and the General assembly would define what gambling is and what gaming machines are, etc.

And then these really smart computer programmers would come in and they would create a game that fits sort of within the, within the, the, the play in the joints of the definitions of the, what the general, General assembly said.

And then the courts would say look, I mean I know what the General assembly is trying to do here, but the law doesn't fit what these guys are doing, therefore we can't prosecute them for it.

We would argue.

And if the General assembly doesn't like it, they can write a law that says these games or this conduct or this activity is forevermore going to be outlawed because we're going to define it specifically.

And so the law evolves with the black robe guys and gals and the General assembly people.

Now we've got constitutional law sort of as an umbrella over all this.

The United States Constitution is the supreme law of the land.

It says so right in the document in a supremacy clause sort of.

And each state has a constitution.

And now we have general assembly laws or legislative laws.

We have like the emergence of the common law.

And then over all of that we've got the Constitution.

So often what happens is these black robe guys, nia or gals and guys in the, say the US Supreme Court, they're going to say look, I understand that there's this law that these legislative branch or that the legislative branch of government has passed.

But you know, we think that that law, say I'm arguing for my client and we do this all the time.

I've got appeals going right now where I'm arguing to the court of appeals saying look, this violates the sixth Amendment right of confrontation or my client's right to trial by jury or some constitutional principle.

And even though the Congress or the state legislative branch passed a law, well the black robe people get to come in and say, well that law is there, but guess what?

If you apply it in this case, in this way, it's unconstitutional.

So therefore you have two choices or maybe less than two, more than two, you have a choice.

You can go back Congress or legislative branch and rewrite it, or you just can't apply it like this again going forward in these types of cases.

And this is happening, this happens all the time, happens regular.

It's happening every time you hear somebody say challenging some action by the federal government, whether it's because of the president or something else, Supreme Court gets involved and says no, can't do that.

Violates the Constitution, or they're saying, no, you can't do that because the legislative intent was different.

We don't think this just came up with tariffs, for instance.

The Supreme Court looked at it and they said, I understand what you're trying to do, executive branch of government, but the statute is here.

And we don't think what you're trying to do fits that statute.

And then what's going to happen?

Well, the executive branch of government is going to come back and do it again and say, well, we're now relying on this statute, and then it's going to go back up and the Supreme Court's going to say, we either agree or disagree that you can use this statute.

And this is the give and take.

Nothing is clear in black and white, in law, in.

And you would say it should be, but I would say it shouldn't be, because if it is, it doesn't leave room for that.

What I would call the awesome process of the emergent common law that just sort of moves as society moves, that changes as society changes, but not faster than society and sometimes slower than we like it.

But ultimately it works.

So look, I never have said our system is perfect.

It's only the best.

You heard it here first Lawyer talk podcast off the record, on the air till now.