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.

Continue ReadingDoes “Judicial Activist” Mean Something?

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.

Continue ReadingMandatory Arbitration Limits?

Resigned Guantanamo Prosecutor Discusses Moral Crisis, Catholic Faith, and Conclusion That “We Had Abandoned Our American Values and Defiled Our Constitution”

In a recent interview with the BBC, former Guantanamo prosecutor Lt. Col. Darrel Vandeveld discusses how the conflict he perceived between his military duties and his religious beliefs (as well as his beliefs about the requirements of the United States Constitution) created what the BBC terms a “profound moral crisis,” one that eventually led to his resignation.  

I found it moving to hear another human being discuss his struggle with these issues of conscience so directly, forthrightly, and genuinely. If you want to hear Lt. Col. Vandeveld’s discuss these events in his own words, you can watch this video at the BBC website. The BBC article reports the events this way:

It was one case in particular, that of a young Afghan called Mohammed Jawad, which caused most concern.

Mr Jawad was accused of throwing a grenade at a US military vehicle.

Col Vandeveld says that in a locker he found indisputable evidence that Mr Jawad had been mistreated.

After Mr Jawad had tried to commit suicide by banging his head against a wall at Guantanamo, Col Vandeveld says that psychologists who assisted interrogators advised taking advantage of Mr Jawad’s vulnerability by subjecting him to specialist interrogation techniques known as “fear up”.

He was also placed, Col Vandeveld says, into what was known as the “frequent flyer” programme in which he was moved from cell to cell every few hours, with the aim of preventing him sleeping properly, and securing a confession.

A devout Catholic, Col Vandeveld found himself deeply troubled by what he discovered.

Continue ReadingResigned Guantanamo Prosecutor Discusses Moral Crisis, Catholic Faith, and Conclusion That “We Had Abandoned Our American Values and Defiled Our Constitution”
Newer Posts
Older Posts