Retired Professor OrneryCoot
6 hours ago edited
Since you asked, here are the essential elements of any legal claim:
-
There must be an enforceable duty to do something, or not do something, established by law, contract, court decree, custom, or otherwise. For example, there's a legal duty to not commit adultery, although they forgot to tell my ex-wife that.
-
There must be an identifiable breach of that duty by someone legally obligated to obey it. If I'm committing adultery with Kristi Noem, but only in my heart, I haven't breached any duty in the (secular) legal sense.
-
The breach of that duty must be the cause of any injuries complained of. This has two aspects: "cause in fact" (the "but for" test), and "proximate" or "legal" cause (the relationship of the breach to the harm as a matter of public policy: The fact that Hitler's father met Hitler's mother might be a cause in fact of WWII, but it is not a proximate cause).
-
The breach of duty must result in (i.e., have been the legal cause of, see above) identifiable damages to an identifiable party. As you might have guessed, there's an entire area of law devoted to the subject of what constitutes legal damages. The fact that the Democrats make my blood boil is not a legal item of damage.
Ancillary considerations include:
-
Any valid defenses to the claim, which can involve anything from immunity (yes, I did it, but the law allows me to because of who I am) to statute of limitations (yes, I did it, but you waited too long to complain). There are a myriad of other legal defenses, everything from contributory negligence to condonation and recrimination. Don't you wish you'd taken my Remedies class?
-
The jurisdiction of the court to resolve the matter. This includes such considerations as personal jurisdiction (i.e., whether this particular party is properly before the court) and subject matter jurisdiction (i.e., whether the court in question has authority over this kind of legal dispute, and the power to afford the kind of relief requested. You can't try a felony case before a traffic court judge). Another jurisdictional issue is the feasability of relief. A court shouldn't issue a ruling that would be impossible or even unreasonably difficult/expensive to enforce.
Applying all of these factors makes it pretty clear that most of what drives you and me crazy these days (everything from making excuses for murderers, racists, terrorists, etc. to providing them with material support) is not going to be actionable under the legal principles enumerated above, certainly not by us, and in many cases not even by the government. In support of the idea that this is a pretty good thing overall, I cite two words: Fani Willis.
I hope this answers at least part of your very excellent questions, above. I also wonder what our RedState Legal Eagle, @Susie Moore, would tell us about this?
