The Lori Drew Verdict
Anne Reed, author of the Deliberations blog, has some interesting comments on the possible role of jury selection in the verdict in the Lori Drew/MySpace harassment case.
Does “Judicial Activist” Mean Something?
Does the term “judicial activism” have some objective meaning? The Capital Times does not seem to think so, reporting earlier this week:
[C]ourt observers and legal scholars are skeptical that the descriptive terms [judicial activist and strict constructionist] have any meaning, except as buzzwords used by conservative candidates to create a clear distinction between themselves and their more liberal rivals.
Now, I do not intend to defend “strict constructionist,” which is the term the story uses to describe conservatives, because I do not think most conservatives are “strict constructionists.” To quote Justice Scalia,
I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.
Textualist and originalist are better terms. Judicial restraint used to be the preferred description, although judicial modesty is on the rise as the preferred label.
My point in this post, however, is to defend the term “judicial activist” as possessing objective meaning.
Mandatory Arbitration Limits?
As I am finishing up the semester teaching dispute resolution and focusing on arbitration, we’ve been having lots of fun in class finding mandatory arbitration clauses in our life — credit cards, cell phones, apartment leases, etc. My favorite clause to teach is from Gateway Computers, which used to have a clause requiring arbitration under the International Chamber of Commerce rules. My guess is that some junior associate drafting the clause thought it would be great to go to Paris on a regular basis!
I point out in class that there have been proposals to limit mandatory arbitration, but that there is generally little expectation these would be passed by the Senate or House. This year, however, the news might be different with the Democrats taking over. As Vicky Pynchon has helpfully posted, there is now new contemplation that the bill could be passed. The bill, proposed by Wisconsin Senator Russ Feingold last summer, provides:
Arbitration Fairness Act of 2007 – Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of: (1) an employment, consumer, or franchise dispute, or (2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.
Declares, further, that the validity or enforceability of an agreement to arbitrate shall be determined by a court, under federal law, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.
Exempts arbitration provisions in collective bargaining agreements from this Act.
So . . . it will be interesting to watch how the new party in charge deals with issue of mandatory arbitration (and if we have to rewrite the arbitration chapters in our textbooks once again!).
Cross posted at Indisputably.