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Topic: Judicial interpretation

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	Interpretation and Coherence in Legal Reasoning (Stanford Encyclopedia of Philosophy)
		Much jurisprudential writing on interpretation in legal reasoning is concerned with how to strike the right balance between the conserving and creative elements in interpretation, and with the constraints which are and/or should be operative upon judges as they undertake this balancing act.
		Moreover, in the case of legal interpretation, Dworkin appears to settle for the argumentative social practice of law as the original to be interpreted (Dworkin 1986, p63).
		Fish's contention that all potential candidates which might constrain interpretation are themselves susceptible to being interpreted in a variety of ways results in his claiming that texts or originals cannot constrain judges at all in the way in which is commonly supposed, as texts do not have meanings in advance of particular interpretations of them.
	plato.stanford.edu /entries/legal-reas-interpret (7538 words)

	Judicial interpretation - Wikipedia, the free encyclopedia
		Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation (see statutory interpretation).
		An interpretation which results in or supports some form of law-making role for the judiciary in interpreting the law is sometimes pejoratively characterized as judicial activism, the opposite of which is judicial lethargy, with judicial restraint somewhere in between.
		For example, some jurists may interpret the Constitution based on their philosophical outlook that the Constitution is a "Living Constitution," or on the opposite extreme, that it is "The Moral Constitution".
	en.wikipedia.org /wiki/Judicial_interpretation (1167 words)

	From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in America (Site not responding. Last check: 2007-10-24)
		Constitutional interpretation was viewed as a special case of the rules of statutory interpretation developed in British law, which were simply common-sense rules for ascertaining the meaning of a document.
		It is that there were generally agreed-on rules of interpretation during that era; that these rules, properly employed, are generally an adequate guide to the meaning of the document; and that where fair interpretation does not yield a clear meaning of the document, a necessary condition for judicial review is absent.
		The judicial review of that era is distinctive because subsequent eras saw the emergence of different ways of interpreting the Constitution: Above all, interpretation became a process of creating new meaning rather than of ascertaining and enforcing an already existing constitutional meaning.
	www.heritage.org /Research/LegalIssues/fp2.cfm (6985 words)

	[No title]
		Judicial independence in America was a reaction of the founding fathers to persecution at the hands of the English monarchs.
		More than a hundred years ago, by judicial fiat, the judges were declared not to be liable in civil actions for their judicial acts even where it was alleged to have been done maliciously and corruptly.
		The advocates of judicial independence refuse to take note of these complaints and would merely attribute the public's dissatisfaction with the judiciary to differences of opinion on intellectual political issues such as school desegregation, the right to abortion and the death penalty.
	www.judicialaccountability.org /judicialaccountability2.htm (851 words)

	Obsidian Wings: Judicial Interpretation
		Any post on judicial interpretation which doesn't address the role of the court in protecting the minority against the tyranny of the majority is ducking the hard issue.
		This idea that "judicial activism" was invented by liberals in the 1960s, or that self-professed fidelity to the original text of the Constitution is any defense to it, shows a complete ignorance of or disregard for history.
		This brings up a whole other judicial abuse: the pretense that the real meaning of the fact that no one challenged a clear reading for 200 years is that there was an unresolved ambiguity, which of course the court resolves in opposition to the 200 year clear understanding.
	obsidianwings.blogs.com /obsidian_wings/2004/07/judicial_interp.html (12963 words)

	PURPOSIVE INTERPRETATION IN LAW
		The goal of interpretation according to Barak is “to achieve the purpose of law, in general, and of the individual legal text as part of it, in particular”(p.xv).
		Thus, interpretation is not about determining the “true” meaning of a text, because this is impossible; instead, Barak argues that we should search for the “proper” meaning of the text knowing that the process is both discretionary and bounded for judges (p.9).
		So a critique of purposive interpretation could be based on differences with Barak over the place of different internal and external sources of objective purpose in constitutional decision making, as well as the question of whether he places too much reliance on the place of objective purpose in the interpretations of constitutions.
	www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/barak0906.htm (12637 words)

	Judicial restraint - Wikipedia, the free encyclopedia
		Judicial restraint is a theory of judicial interpretation which endorses the limited exercise of power by the judiciary.
		Another form of restraint is embraced by judicial minimalists, who argue that the more important properties of restraint are adherence to stare decisis and precedent, properties that ensure stability and predictablility.
		All forms of judicial restraint are thought to bring stability and predictability to jurisprudence.
	en.wikipedia.org /wiki/Judicial_restraint (311 words)

	LLRX -- Judicial Information of the People's Republic of China: A Survey
		In China, the judicial interpretation is referred to the interpretations, made by the national supreme judicial authorities on questions relating to specific application of laws in their judicial practices according to the authorization of the NPC.
		The judicial interpretation has a long history in China, dating back to 1954, shortly after the founding of the People's Republic of China, the judicial interpretation appeared along with the rapid progress in the fields of economic construction and national legislation after the first Constitution was promulgated.
		Thus the supreme judicial organ, for the first time, was formally conferred with the power of enacting judicial interpretation by the highest organ of state power from that time forward.
	www.llrx.com /features/chinajudicial.htm (5318 words)

	Judicial Activism Reconsidered
		A contemporary exponent of judicial restraint, Judge Robert H. Bork, has summarized the argument in terms very similar to those of Holmes: "In a constitutional democracy, the moral content of the law must be given by the morality of the framer or the legislator, never by the morality of the judge.
		The argument for judicial restraint in specific cases is that the inevitable variance from the ideal can be better kept within limits when the whole process is conceived as one of seeking boundaries of cognitive meaning for each concrete case as it arises, rather than weighing values derived from a multiplicity of ever-changing sources.
		The more general argument for judicial restraint is that, even when imperfectly observed, it has maintained a political legitimacy and public support which have enabled constitutional democracy to survive for two hundred years, while more ambitious forms of government have come and gone-- or have been able to survive only by draconian methods.
	www.tsowell.com /judicial.htm (12540 words)

	blog.kennypearce.net: What is Judicial Activism?
		"Judicial activism" occurs when a judge "legislates from the bench," as we say - that is, when he simply makes up laws according to his preferences rather than according to his unbiased interpretation of the law.
		Her decisions are completely unpredictable (more so, in fact, then most judicial activists, because her policy preferences are also rather unpredictable), and there is no way to tell how a new statute or constitutional amendment will affect her decisions, if at all.
		Rather, his overall theory of interpretation and his ability and willingness to consistently apply it should be the determining factors in his nomination.
	blog.kennypearce.net /archives/000130.html (1300 words)

	Principles of Constitutional Interpretation
		Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly.
		The common law rule of interpretation understood by the Founders was to discern the functional role of elements of the law, not the private purposes of the lawgivers.
		The entire theme and tenor of the ratification debates was that delegated powers were to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power.
	www.constitution.org /cons/prin_cons.htm (1590 words)

	STATUTORY INTERPRETATION
		Interpretation of statutes - Approaches to construction (literal and purposive); the use of intrinsic and extrinsic materials.
		Judicial interpretation is unregulated by Parliament, however Parliament (usually!) drafts Acts in such a way as to minimise the amount of interpretation that is necessary.
		The reason for this is that to have a high degree of judicial interpretation would compromise certainty and result in redrafting of laws by judges.
	www.richinstyle.com /masterclass/smallerblack/interpretation.html (3733 words)

	PRECEDENT AND JUDICIAL POWER AFTER THE FOUNDING
		When the source of law is the common law, as opposed to interpretation of a statute or a constitution, it is often said that a case is squarely on point only if the facts of the case are sufficiently similar and the general principles necessary to the decision correspond to the present case.
		The notion of a judiciary geared to protect economic interests is generally consistent with the reigning paradigm of interpretation for this period—a paradigm which emphasizes the role of economic thought in shaping judicial decisions.
		Although courts have considered the term “judicial power” in Article III to impose constraints in other ar[PG113]eas,141 no one has suggested before that the notion of judicial* power includes an obligation to respect precedent, however undefined this obligation may yet be.
	www.bc.edu /bc_org/avp/law/lwsch/journals/bclawr/42_1/02_TXT.htm (11168 words)

	Theories of Constitutional Interpretation
		There are five sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law.
		A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, requires the exercise of discretion and the weighing of consequences.
		A theory of constitutional interpretation that ignores consequences is no more satisfactory than one that ignores the political importance of building a bridge between the contemporary judge's pronouncement and some authoritative document from the past.
	www.law.umkc.edu /faculty/projects/ftrials/conlaw/interp.html (3052 words)

	LEGISLATION, INTERPRETATION, AND JUDICIAL REVIEW (Site not responding. Last check: 2007-10-24)
		A highlight is his response to the popular 'Ulysses and the sirens' analogy, which compares the judicial enforcement of constitutional rights to Ulysses' sailors obeying his prior command that he be restrained from succumbing to the irrational lure of the sirens' singing.
		And the purposive approach to interpretation can be abused by judges who dishonestly foist on statutes alien purposes that they know did not motivate a majority of legislators.
		But if legislation is interpreted not according to the view of the majority but according to the defeated views of a minority, then the will of the majority is frustrated for no better reason than that a few judges prefer the minority view.
	www.utpjournals.com /product/utlj/511/511_goldsworthy.html (4524 words)

	AMERICAN CONSTITUTIONAL LAW
		When I suggested that the kind of exchange he was looking for could be found by supplementing judicial constitutional interpretation with congressional, executive, state, and popular constitutional interpretation, he quickly replied that statutes, rules, and public opinion are flat and contribute little or nothing to creating a more engaging or dialectical constitutional debate.
		Constitutional law is thus reduced to the judicial exercise of divining the meaning of textual provisions.
		Others overlook the politics of constitutional interpretation, analyzing legal principles and doctrine as if they are not articulated by political actors who are well aware of the political consequences of their interpretations.
	www.unt.edu /lpbr/subpages/reviews/fisher1.htm (1191 words)

	Original Meaning in Judicial interpretation - Objectivism Online Forum
		It his belief that it is not the judicial branche's job to change laws unless they violate the Constitution.
		The constitution doesn't specifically cover abortion as a right, and we'd probably admit that the current interpretation is poorly founded, but Scalia wants it tossed back to the mob to vote down, even though there would be ample reason to apply the principle of individual rights to it.
		Now as a linguist, I can appreciate Scalia's derision of language sophistry at the hands of judicial interpreters, but at the same time, in saying that Scalia has the best sensitivity to language that I've seen among judges is damning with faint praise.
	forum.objectivismonline.net /index.php?showtopic=8232 (2332 words)

	The Right to Keep and Bear Arms in State Bills of Rights and Judicial Interpretation
		INTERPRETATION: The Federal Constitution is a grant of limited power and its Bill of Rights is a further restriction on governmental power.
		Although many judges have a reflexive bias against the right to keep and bear arms, case law involving the interpretation of state guarantees indicates that state courts offer the most promise in protecting this individual liberty.
		This guarantee should be interpreted according to rules of construction established by the Arizona Supreme Court.
	members.aol.com /dowlut/saf.html (2895 words)

	[No title]
		Barak’s vigorous support of “purposive interpretation” (interpreting legal texts–for example, statutes and constitutions–in light of their purpose) contrasts sharply with the influential “originalism”; advocated by U.S. Supreme Court Justice Antonin Scalia.
		Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges’ social peers.
		Engagingly written, this book provides a deeper understanding of key issues concerning judicial behavior on which scholars disagree, identifies aspects of judicial behavior that diverge from the assumptions of existing models, and shows how those models can be strengthened.
	www.ideobook.net /237 (877 words)

	BEARING ARMS IN STATE BILLS OF RIGHTS, JUDICIAL INTERPRETATION, AND PUBLIC HOUSING
		This article will review how state courts interpret state constitutional guarantees to arms, address the refusal by some courts to apply established rules on the interpretation of constitutional guarantees to arms cases, and examine discriminatory firearm bans in public housing.
		In right to bear arms cases, courts have questioned whether arms are to be borne in such a manner as to render them wholly useless for the purposes guaranteed in the constitution.
		This guarantee of the Arizona Constitution should be interpreted in accordance with the rules of construction established by the Arizona Supreme Court.
	www.guncite.com /journals/dowpubh.html (4273 words)

	Judicial Interpretation: An Introduction \|Judicial History \| OAH Magazine of History
		To distinguish between the two broad currents in judicial interpretation: a) Original Intent or Original Understanding, and b) the Living Constitution doctrine—that the text is in a dynamic relationship with a changing society.
		This lesson presents two basic approaches to judicial interpretation: 1) In order to understand the meaning of the Constitution, we must focus exclusively on the context of its genesis and ratification, and 2) The language of the Constitution resonates with abstract principles that cannot be teased out through a careful exegesis of the text alone.
		Because judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation (2).
	www.oah.org /pubs/magazine/judicial/rader.html (3082 words)

	Constitutional Interpretation
		Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task.
		He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders.
		Other originalists have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to critics of their assumptions or their method.
	www.princeton.edu /~kewhitt/interp.html (419 words)

	SSRN-Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts ...
		Indeed, these characteristics of decadence are made worse by a bloated and ill-defined catalogue of interpretive doctrines that veils all distortion of constitutional principle in the service of personal politics.
		It suggests that European traditions of hierarchies of fundamental constitutional values provide at least a basis for the policing of judicial interpretation.
		Equally likely is the possibility that such a system will be abandoned because, having become so engorged in detail, point and counterpoint, thrust and counter-thrust, rule and exception, it will prove useless to all but the theoretician and the pedant.
	papers.ssrn.com /sol3/papers.cfm?abstract_id=257793 (431 words)

	SSRN-The Location and Limits of Dynamic Statutory Interpretation in Modern Judicial Reasoning by Stephen Ross
		This commentary seeks to define the limits of dynamic interpretation and to increase the transparency of judicial reasoning, both as a means of allowing a better judgment about the quality of judicial interpretation, and as an avowed way of constraining judicial activism, now increasingly in vogue with conservative judges.
		First, the commentary analyzes Dynamic Statutory Interpretation as well as subsequent work by William Eskridge, in particular his analysis of the hermeneutics of Hans-Georg Gadamer, to emphasize that dynamic interpretation does not reject "outdated" expectation but "fuses" original and present horizons.
		In particular, the Cube highlights three analytically distinct modes of reasoning: 1) sincere efforts to effectuate the legislative directive; 2) interpretation based on "normative" canons of interpretation designed to effectuate judge-made rules; 3) judicial efforts to achieve the best policy or most just result in the case at hand.
	papers.ssrn.com /sol3/papers.cfm?abstract_id=420500 (291 words)

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