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• The Tools And Techniques Of Judicial Creativity And Precedent Meaning
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• The Tools And Techniques Of Judicial Creativity And Precedent Science

Sun tv serial list. PRECEDENTS: “Judicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.J, Page 11 of 46 Precedent played a significant role in ensuring that ideals like creativity, stability and uniformity gave the law a garb of reasonableness and legitimacy.

Alternative dispute resolution (ADR; known in some countries, such as India,^[1] as external dispute resolution) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with the help of a third party.

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called 'compulsory' mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.^[2]

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.^[3] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.^[4]

• 1Salient features
• 2Country-specific examples
  • 2.4India
    • 2.4.1Arbitration and Conciliation Act, 1996
    • 2.4.2Lok Adalat
• 3Additional resources

Salient features[edit]

Alternative dispute resolution (ADR) is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. Sometimes, conciliation is included as a fifth category, but for simplicity may be regarded as a form of mediation. ADR can be used alongside existing legal systems such as Sharia courts within common law jurisdictions, such as the UK.

ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages.

ADR is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.

ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court-appointed mediator or mediation panel. Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the application of the procedure.

For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting.

Calling upon an organizational ombudsman's office is never, by itself, a formal procedure. (Calling upon an organizational ombudsman is always voluntary; by the International Ombudsman Association Standards of Practice, no one can be compelled to use an ombuds office.)

Organizational ombuds offices refer people to all conflict management options in the organization: formal and informal, rights-based and interest-based. But, in addition, in part because they have no decision-making authority, ombuds offices can, themselves, offer a wide spectrum of informal options.

This spectrum is often overlooked in contemporary discussions of 'ADR'. 'ADR' often refers to external conflict management options that are important, but used only occasionally. An organizational ombuds office typically offers many internal options that are used in hundreds of cases a year. These options include:

• delivering respect, for example, affirming the feelings of a visitor, while staying explicitly neutral on the facts of a case,
• active listening, serving as a sounding board,
• providing and explaining information, one-on-one, for example, about policies and rules, and about the context of a concern,
• receiving vital information, one-on-one, for example, from those reporting unacceptable or illegal behavior,
• reframing issues,
• helping to develop and evaluate new options for the issues at hand,
• offering the option of referrals to other resources, to 'key people' in the relevant department, and to managers and compliance offices,
• helping people help themselves to use a direct approach, for example, helping people collect and analyze their own information, helping people to draft a letter about their issues, coaching and role-playing,
• offering shuttle diplomacy, for example, helping employees and managers to think through proposals that may resolve a dispute, facilitating discussions,
• offering mediation inside the organization,
• 'looking into' a problem informally,
• facilitating a generic approach to an individual problem, for example instigating or offering training on a given issue, finding ways to promulgate an existing policy,
• identifying and communicating throughout the organization about 'new issues',
• identifying and communicating about patterns of issues,
• working for systems change, for example, suggesting new policies, or procedures,
• following up with a visitor, following up on a system change recommendation. (See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 8–17.)

Informal referral to a co-worker known to help people work out issues is an informal procedure. Co-worker interventions are usually informal.

Conceptualizing ADR in this way makes it easy to avoid confusing tools and methods (does negotiation once a lawsuit is filed cease to be ADR? If it is a tool, then the question is the wrong question) (is mediation ADR unless a court orders it? If you look at court orders and similar things as formalism, then the answer is clear: court annexed mediation is merely a formal ADR process).

Dividing lines in ADR processes are often provider driven rather than consumer driven. Educated consumers will often choose to use many different options depending on the needs and circumstances that they face.

Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process.^[5]

The salient features of each type are as follows:

1. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called 'Helping People Help Themselves' – see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.)
2. In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a 'mediator's proposal'), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
3. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes.
4. In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'.^[6] In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts.^[7] Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.^[8]

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:

• Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.
• Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.
• Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
• Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.
• Ombuds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents.

An organizational ombudsman works within the institution to look into complaints independently and impartially.^[9]

'Alternative' dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.

In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster 'appropriate' dispute resolution.^[10]

That is, some cases and some complaints in fact ought to go to formal grievance or to court or to the police or to a compliance officer or to a government IG. Other conflicts could be settled by the parties if they had enough support and coaching, and yet other cases need mediation or arbitration. Thus 'alternative' dispute resolution usually means a method that is not the courts. 'Appropriate' dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue.^[11]

ADR can increasingly be conducted online, which is known as online dispute resolution (ODR, which is mostly a buzzword and an attempt to create a distinctive product). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the 'alternative' element of ADR.

Benefits and disadvantages[edit]

ADR has several advantages over litigation:

• Suitable for multi-party disputes
• Lower costs, in many cases its free when involving consumers
• Likelihood and speed of settlements
• Flexibility of process
• Parties' control of process
• Parties' choice of forum
• Practical solutions
• Wider range of issues can be considered
• Shared future interests may be protected
• Confidentiality
• Risk management
• Generally no need for lawyers

However, ADR less suitable than litigation when there is:

• A need for precedent
• A need for court orders
• A need for interim orders
• A need for evidential rules
• A need for enforcement
• Power imbalance between parties
• Quasi-criminal allegations
• Complexity in the case
• The need for live evidence or analysis of complex evidence
• The need for expert evidence

Modern era[edit]

Traditional people's mediation has always involved the parties remaining in contact for most or all of the mediation session. The innovation of separating the parties after (or sometimes before) a joint session and conducting the rest of the process without the parties in the same area was a major innovation and one that dramatically improved mediation's success rate.

Traditional arbitration involved heads of trade guilds or other dominant authorities settling disputes. The modern innovation was to have commercial vendors of arbitrators, often ones with little or no social or political dominance over the parties. The advantage was that such persons are much more readily available. The disadvantage is that it does not involve the community of the parties. When wool contract arbitration was conducted by senior guild officials, the arbitrator combined a seasoned expert on the subject matter with a socially dominant individual whose patronage, good will and opinion were important.

Private judges and summary jury trials are cost- and time-saving processes that have had limited penetration due to the alternatives becoming more robust and accepted.

Country-specific examples[edit]

Somalia[edit]

Somalia has a cultural and historic mediation and justice system known as ADR (Alternative Dispute Resolution), which is an informal justice system. It is a kind of justice system in which the arbiter listens to both sides of dispute and then concludes a solution that both sides will accept.

Roman Empire[edit]

Latin has a number of terms for mediator that predate the Roman Empire. Any time there are formal adjudicative processes it appears that there are informal ones as well. It is probably fruitless to attempt to determine which group had mediation first.

Iceland[edit]

Njáls saga is an Icelandic story of a mediator who was so successful that he eventually threatened the local power structure. It ends in tragedy with the unlawful burning of Njal alive in his home, the escape of a friend of the family, a mini-war and the eventual ending of the dispute by the intermarriage of the two strongest survivors. It illustrates that mediation was a powerful process in Iceland.

India[edit]

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

Due to extremely slow judicial process, there has been a big thrust on Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach.

A study on commercial dispute resolution in south India has been done by a think tank organization based in Kochi, Centre for Public Policy Research. The study reveals that the Court-annexed Mediation Centre in Bangalore has a success rate of 64%, and its counterpart in Kerala has an average success rate of 27.7%. Further, amongst the three southern states (Karnataka, Tamil Nadu, and Kerala), Tamil Nadu is said to have the highest adoption of dispute resolution, Kerala the least.^[12]

Arbitration and Conciliation Act, 1996[edit]

Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.)

Arbitration[edit]

The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defense in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.

Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal.

Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.

The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

Conciliation[edit]

Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

Note that in the US, this process is similar to mediation. However, in India, mediation is different from conciliation and is a completely informal type of ADR mechanism.

Lok Adalat[edit]

Etymologically, Lok Adalat means 'people's court'. India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or members of legal profession. It does not have jurisdiction on matters related to non-compoundable offences.

While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts.

Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party.

The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgement by consent.

All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.

Permanent Lok Adalat for public utility services[edit]

In order to get over the major drawback in the existing scheme of organisation of Lok Adalats under Chapter VI of the Legal Services Authorities Act 1987, in which if the parties do not arrive at any compromise or settlement, the unsettled case is either returned to the back to the court or the parties are advised to seek remedy in a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the Legal Services Authorities Act, 1987, at pre-litigation stage itself, which would result in reducing the work load of the regular courts to a great extent. Permanent Lok Adalat for Public Utility Services, Hyderabad, India

The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws, and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat.

Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat.

Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

Pakistan[edit]

The relevant laws (or parlour provisions) dealing with the ADR are summarised as under:

1. S.89-A of the Civil Procedure Code, 1908 (Indian but amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).
2. The Small Claims and Minor Offences Courts Ordinance, 2002.
3. Sections 102–106 of the Local Government Ordinance, 2001.
4. Sections 10 and 12 of the Family Courts Act, 1964.
5. Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).
6. The Arbitration Act, 1940 (Indian).
7. Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)
8. Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
9. Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)
10. Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)
11. Arbitration (International Investment Disputes) Act, 2011
12. Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011

13.Alternative Dispute Resolution Act. 2017

Sub-Saharan Africa[edit]

Before modern state law was introduced under colonialism, African customary legal systems mainly relied on mediation and conciliation. In many countries, these traditional mechanisms have been integrated into the official legal system. In Benin, specialised tribunaux de conciliation hear cases on a broad range of civil law matters. Results are then transmitted to the court of first instance where either a successful conciliation is confirmed or jurisdiction is assumed by the higher court. Similar tribunals also operate, in varying modes, in other francophone African countries.^[13]

United Kingdom[edit]

In the United Kingdom, ADR is encouraged as a mean of resolving taxpayers' disputes with Her Majesty's Revenue and Customs.^[14]

In the regulated sectors, finance, telecoms and energy ADR providers exist. Outside of the regulated areas there are schemes in many sectors which provide schemes for voluntary membership. Two sets of regulations, in March and June 2015, were laid in Parliament to implement the European Directive on alternative dispute resolution in the UK.

Alternative Dispute Resolution is now widely used in the UK across many sectors. In the communications, energy, Finance and Legal sectors, it is compulsory for traders to signpost to approved ADR schemes when they are unable to resolve disputes with consumers. In the aviation sector there is a quasi-compulsory ADR landscape, where airlines have an obligation to signpost to either an approved ADR scheme or PACT - which is operated by the Civil Aviation Authority^[15].

On 1st October 2015 the UK adopted The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015^[16] into law, which set out rules in relation to ADR and put measures into place to widen the use and application of ADR.

U.S. Navy[edit]

SECNAVINST 5800.13A established the DON ADR Program Office with the following missions:

• Coordinate ADR policy and initiatives;
• Assist activities in securing or creating cost effective ADR techniques or local programs;
• Promote the use of ADR, and provide training in negotiation and ADR methods;
• Serve as legal counsel for in-house neutrals used on ADR matters; and,
• For matters that do not use in-house neutrals, the program assists DON attorneys and other representatives concerning issues in controversy that are amenable to using ADR.

The ADR Office also serves as the point of contact for questions regarding the use of ADR. The Assistant General Counsel (ADR) serves as the 'Dispute Resolution Specialist' for the DON, as required by the Administrative Dispute Resolution Act of 1996. Members of the office represent the DON’s interests on a variety of DoD and interagency working groups that promote the use of ADR within the Federal Government.

Additional resources[edit]

Cardozo School of Law's Kukin Program for Conflict Resolution[edit]

Cardozo School of Law's Kukin Program for Conflict Resolution is the seventh ranked alternative dispute resolution program in the country^{[citation needed]}. The program includes: courses in negotiation, mediation, arbitration and dispute resolution processes; out-of-the-classroom-applied learning and scholarship in Cardozo’s Mediation Clinic and Securities Arbitration Clinic; the Cardozo Journal of Conflict Resolution, a student-run triannual publication; the Cardozo Dispute Resolution Society; and a Certificate in Dispute Resolution, awarded to J.D. students who complete coursework, writing and service requirements. LL.M. students can also receive an LL.M. in Dispute Resolution and Advocacy.^[17]

Cornell University's Scheinman Institute on Conflict Resolution[edit]

Cornell's ILR School has joined forces with Cornell's Law School to present the country's most comprehensive conflict resolution program focusing on workplace alternative dispute resolution (ADR). The Martin and Laurie Scheinman Institute on Conflict Resolution mission is to educate the next generation of neutrals – arbitrators, mediators and facilitators – who can help resolve disputes between employers and employees, both unionized and non-unionized. The Institute provides training for undergraduate and graduate students, consultation and evaluation, and conducts research. It also offers courses in two- to five-day sessions designed for professionals who are interested in or practicing in the workplace dispute resolution field. These highly intensive and participatory courses are coordinated by Cornell ILR faculty and are held in the ILR School's conference center in Manhattan and on the Ithaca campus. Participants can earn two certificates, Workplace Alternative Dispute Resolution and Conflict Management and Labor Arbitration.

Fordham Law School's Dispute Resolution Program[edit]

Fordham Law School’s Dispute Resolution program placed in the top 10 of U.S. News & World Report's 2008 rankings of the best Dispute Resolution programs in the nation, according to the recently released rankings. Along with Fordham's Clinical Training program, the Dispute Resolution program is the top-ranked specialty program at Fordham Law School. The Alternative Dispute Resolution program at Fordham combines an integrated agenda of teaching, scholarship, and practice in conflict resolution within the national and international communities. In addition to the classroom and clinical experience, the law school's student-run Dispute Resolution Society competes in ABA-sponsored interschool competitions as well as international mediation and arbitration competitions. In 2008 the Society's teams won the ABA Regional Negotiation Competition, placed third overall in the International Chamber of Commerce Commercial Mediation Competition in Paris, and reached the semifinals of the Willem C. Vis (East) International Commercial Arbitration Competition in Hong Kong. Additionally, Fordham's Dispute Resolution Society hosts an annual symposium on current Dispute Resolution topics and also teaches a class on dispute resolution skills to seniors at the Martin Luther King, Jr. High School in New York City.

Harvard Program on Negotiation[edit]

'The [Harvard] Program on Negotiation (PON) is a university consortium dedicated to developing the theory and practice of negotiation and dispute resolution. As a community of scholars and practitioners, PON serves a unique role in the world negotiation community. Founded in 1983 as a special research project at Harvard Law School, PON includes faculty, students, and staff from Harvard University, Massachusetts Institute of Technology and Tufts University.'^[18] Harvard currently offers 12-week courses on negotiation and mediation for participants from all disciplines and professions as well as weekend seminars taught by their professors. The Harvard PON program is currently ranked #3 falling from #2 last year according to the U.S. World and News Report, and has also remained among the top 10 schools over the last decade.^[19]

Straus Institute for Dispute Resolution[edit]

Pepperdine University School of Law’s Straus Institute for Dispute Resolution^[20] provides professional training and academic programs in dispute resolution including a Certificate, Masters in Dispute Resolution (MDR) and Masters of Law in Dispute Resolution (LLM). Straus provides education to law and graduate students, as well as mid-career professionals in areas of mediation, negotiation, arbitration, international dispute resolution and peacemaking.^[21] The Straus Institute is ranked the number one dispute resolution school in the nation by US News and World Report.^[22]

CUNY Dispute Resolution Consortium[edit]

The City University of New York Dispute Resolution Consortium (CUNY DRC) serves as an intellectual home to dispute-resolution faculty, staff and students at the City University of New York and to the diverse dispute-resolution community in New York City. At the United States' largest urban university system, the CUNY DRC has become a focal point for furthering academic and applied conflict resolution work in one of the world's most diverse cities. The CUNY DRC conducts research and innovative program development, has co-organized countless conferences, sponsored training programs, resolved a wide range of intractable conflicts, published research working papers and a newsletter. It also maintains an extensive database of those interested in dispute resolution in New York City, a website with resources for dispute resolvers in New York City and since 9/11, the CUNY DRC assumed a leadership role for dispute-resolvers in New York City by establishing an extensive electronic mailing list, sponsoring monthly breakfast meetings, conducting research on responses to catastrophes, and managing a public awareness initiative to further the work of dispute resolvers.

CPR Institute for Dispute Resolution[edit]

The International Institute for Conflict Prevention and Resolution, known as the CPR Institute, is a New York City membership-based nonprofit organization that 'promotes excellence and innovation in public and private dispute resolution'.^[23] To this end, it serves as a 'primary multinational resource for avoidance, management, and resolution of business-related disputes'.^[23]

The CPR Institute was founded in 1979 as the Center for Public Resources by a coalition of leading corporate general counsel dedicated to identifying and applying appropriate alternative solutions to business disputes, thereby mitigating the extraordinary costs of lengthy court trials. Today, the CPR Institute is a nonprofit educational corporation existing under the New York state laws, and is tax exempt pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. It is governed by a board of directors, and its priorities and policies are guided in large part by consultation with an executive advisory committee. Its funding is primarily derived from the annual contributions of its member organizations, and from its mission-related programming. The various operations and activities that fulfill the Institute’s mission are captured in the acronym of its name:

C: CPR convenes legal and business leadership to develop, and encourage the exchange of, best practices in avoiding, managing and resolving disputes.

P: CPR publishes its own work and that of other like-minded organizations, making resources available to a global community of problem-solvers.

R: CPR helps to resolve complex disputes among sophisticated parties, by devising rules, protocols and best practices, and by providing disputants with resources and consulting expertise in selecting appropriate methods and neutrals to assist in the dispute resolution process.

ICAR[edit]

Established at George Mason as an alternative to a sociology program due to Virginia's then policy against duplicating graduate schools, it was the nation's first major dispute resolution graduate program. It has been a major success.^{[citation needed]}

See also[edit]

References[edit]

1. ^Australian Securities and Investments Commission - Complaints resolution schemesArchived 6 January 2009 at the Wayback Machine. Asic.gov.au. Retrieved on 2013-07-14.
2. ^Litvak, Jeff; Miller, Brent. 'Using Due Diligence and Alternative Dispute Resolutions to Resolve Post-Acquisition Disputes'. Transaction Advisors. ISSN2329-9134. Archived from the original on 23 July 2015.
3. ^Totaro, Gianna., 'Avoid court at all costs' The Australian Financial Review Nov. 14 2008. (April 19, 2010)
4. ^Clift, Noel Rhys (3 May 2010). 'The Phenomenon of Mediation: Judicial Perspectives and an Eye on the Future' – via papers.ssrn.com.
5. ^Taken with permission from a presentation by Stephen R. Marsh of 'Archived copy'. Archived from the original on 4 February 2009. Retrieved 28 January 2009.CS1 maint: Archived copy as title (link)
6. ^Scott v Avery (1856) 5 HLCas 811, 10 ER 1121, House of Lords (UK).
7. ^Schwartz, David S., 'Mandatory Arbitration and Fairness.' 84 Notre Dame L. Rev. 1247 (April 19, 2010)
8. ^International Institute for Conflict Prevention & Resolution. 'Arbitration Appeal Procedure.' 'Archived copy'. Archived from the original on 8 April 2010. Retrieved 21 April 2010.CS1 maint: Archived copy as title (link)
9. ^'What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.' American Bar Association. 'Archived copy'(PDF). Archived(PDF) from the original on 18 May 2008. Retrieved 18 March 2008.CS1 maint: Archived copy as title (link)
10. ^Lynch, J. 'ADR and Beyond: A Systems Approach to Conflict Management',Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
11. ^'Notes on options for managers'(PDF). Archived from the original(PDF) on 20 September 2006.
12. ^''See You In Court' Or 'See You Out Of Court' ? A Burdened Judicial System; Can ADR System Be An Answer?..'Archived from the original on 27 September 2017.
13. ^Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, Addis Abada, 2007 (on ADR in AfricaArchived 6 August 2010 at the Wayback Machine).
14. ^HMRC 'Tax disputes: Alternative Dispute Resolution (ADR)' 'Archived copy'. Archived from the original on 23 September 2015. Retrieved 23 September 2015.CS1 maint: Archived copy as title (link) accessed 23 September 2015
15. ^'Alternative Dispute Resolution UK Civil Aviation Authority'. www.caa.co.uk. Retrieved 8 February 2019.
16. ^'The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015'. www.legislation.gov.uk. Retrieved 8 February 2019.
17. ^Cardozo School of Law's Kukin Program for Conflict ResolutionArchived 12 March 2014 at the Wayback Machine
18. ^Welcome to the Program on Negotiation (PON)Archived 23 October 2009 at the Wayback Machine. Pon.harvard.edu. Retrieved on 2013-07-14.
19. ^Best Dispute Resolution Programs Top Law Schools US News Best Graduate SchoolsArchived 1 January 2011 at the Wayback Machine. Grad-schools.usnews.rankingsandreviews.com. Retrieved on 2013-07-14.
20. ^Straus Institute for Dispute Resolution School of Law Pepperdine UniversityArchived 30 March 2014 at the Wayback Machine. Law.pepperdine.edu. Retrieved on 2013-07-14.
21. ^'#1 Ranked Dispute Resolution Program - Straus Institute for Dispute Resolution - School of Law - Pepperdine University'. law.pepperdine.edu. Archived from the original on 30 March 2014.
22. ^'Best Law Schools Specialty Rankings: Dispute Resolution.' U.S. World and News Report 'Archived copy'. Archived from the original on 8 March 2009. Retrieved 2009-02-08.CS1 maint: Archived copy as title (link)
23. ^ ^ab'Alternatives to the High Cost of Litigation'(PDF). Archived from the original(PDF) on 24 September 2007.

Further reading[edit]

• Lynch, J. 'ADR and Beyond: A Systems Approach to Conflict Management', Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
• Gary Born. 'International Commercial Arbitration' (2009 Kluwer).
• William Ury, Roger Fisher, Bruce Patton. 'Getting to Yes' (1981 Penguin Group).

External links[edit]

• Party-Directed Mediation: Facilitating Dialogue Between Individuals by Gregorio Billikopf, free complete book PDF download, at the University of California (3rd Edition, posted 24 March 2014)
• Party-Directed Mediation: Facilitating Dialogue Between Individuals by Gregorio Billikopf, free complete book download, from Internet Archive (3rd Edition, multiple file formats including PDF, EPUB, and others)
• Center for Alternative Dispute Resolution - CADR an institution provides training and accreditation for ADR practitioners.
• ADR International Register:^[1] ISO-based registration and certification for ADR practitioners such as arbitrators, conflictcoaches, mediators and negotiators.

In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified. This concept views the Constitution as stable from the time of enactment, and that the meaning of its contents can be changed only by the steps set out in Article Five.^[1] This notion stands in contrast to the concept of the living constitution, which asserts that the Constitution is intended to be interpreted based on the context of the current times, even if such interpretation is different from the original interpretations of the document.^[2][3]

The Tools And Techniques Of Judicial Creativity And Precedent Meaning

The term originated in the 1980s.^[4] Originalism is an umbrella term for interpretative methods that hold to the 'fixation thesis', the notion that an utterance's semantic content is fixed at the time it is uttered.^[5] Originalists seek one of two alternative sources of meaning:

• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. Alfred Avins and Raoul Berger (author of Government by Judiciary) are associated with this view.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Antonin Scalia, are associated with this view.

Such theories share the view that there is an identifiable original intent or original meaning, contemporaneous with the ratification of a constitution or statute, which should govern its subsequent interpretation. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.

• 2Forms
  • 2.1Original intent
  • 2.2Original meaning
• 4Discussion
• 5Pros and cons
  • 5.2Arguments opposing originalism

Strict constructionism[edit]

Bret Boyce described the origins of the term originalist as follows: The term 'originalism' has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding.^[1] It is often asserted that originalism is synonymous with strict constructionism.^[6][7][8][9]

The Tools And Techniques Of Judicial Creativity And Precedent Pdf

Both theories are associated with textualist and formalist schools of thought, however there are pronounced differences between them. Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means).^[10] Scalia averred that he was 'not a strict constructionist, and no-one ought to be'; he goes further, calling strict constructionism 'a degraded form of textualism that brings the whole philosophy into disrepute'.^[11]

Originalism is a theory of interpretation, not construction.^[12] However, this distinction between 'interpretation' and 'construction' is controversial and is rejected by many nonoriginalists as artificial. As Scalia said, 'the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably'; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist and a strict constructionist—but he is not one by virtue of being the other.

Forms[edit]

Originalism is actually a family of related views. As a movement, originalism can be traced to Robert Bork's 'Neutral Principles and Some First Amendment Problems', published in the Indiana Law Journal in January 1971.^[13] However, it was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. 'Old originalism' focused primarily on 'intent', mostly by default. But that line was largely abandoned in the early 1990s; as 'new originalism' emerged; most adherents subscribed to 'original meaning' originalism, though there are some intentionalists within new originalism.

Original intent[edit]

The original form of originalism is sometimes called intentionalism, or original intent originalism, and looked for the subjective intent of a law's enactors. One problem with this approach is identifying the relevant 'lawmaker' whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular Founding Fathers that drafted it, such as those on the Committee of Detail. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, or debates in the state legislatures, for clues as to their intent.

There are two kinds of intent analysis, reflecting two meanings of the word intent. The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, we can discern that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle.^[14]

Problems with intentionalism[edit]

However, a number of problems are inherent in intentionalism, and a fortiori when that theory is applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and while a few did, there is no reason to think that they should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded; however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of law review articles in the 1980s.^[15] Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and whether the framers themselves would have supported original intent.^[16]

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia,^[17]Robert Bork,^[18] and Randy Barnett,^[19] came to the fore. This is dubbed original meaning.

Original meaning[edit]

Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to 'get into his mind' because the issue was 'not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.'^[20] This is the essential precept of modern originalism.

The most robust and widely cited form of originalism, original meaning, emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell^[21] notes that phrases like 'due process' and 'freedom of the press' had a long established meaning in English law, even before they were put into the Constitution of the United States.' Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; see 'Matters rendered moot by originalism', infra) to establish what particular terms meant. See Methodology, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to the latter category:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.^[22]

Though there may be no evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia's approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning's positive effect on rule of law.

Perhaps the clearest example illustrating the importance of the difference between original intent and original meaning is the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.

Semantic originalism[edit]

Semantic-originalism is Ronald Dworkin's term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. This type of originalism contrasts with expectations originalism, which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways.^[23]

Justice Antonin Scalia and other originalists often claim that the death penalty is not 'cruel and unusual punishment' because at the time of the Eighth Amendment's passage, it was a punishment believed to be neither cruel nor unusual. Dworkin and the semantic-originalists assert, however, that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact 'cruel and unusual', then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling.^[24]

Framework originalism[edit]

Framework Originalism is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of primarily two constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two, aforementioned, interpretive approaches—when properly understood. Framework Originalists view the Constitution as an 'initial framework for governance that sets politics in motion.' This 'framework' must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial).^[25] In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their 'joint responsiveness to public opinion' over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social mores, norms, customs and (public) opinions.

According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally be applied to. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the fourteenth amendment is concerned with such issues (as well as the fact that the fourteenth amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like 'equal protection' or 'unreasonable searches and seizures,' further construction is usually required, by either the judiciary, the executive or legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to 'engage in considerable constitutional construction as well as the elaboration and application of previous constructions.' For example, originalism (in and of itself), is not sufficient enough to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, it also comes from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.

Professor Nelson Lund of George Mason University Law School has criticized Balkin's living originalism theory.^[26] Specifically, Lund argues that living originalism could be used to read the 26th Amendment to the United States Constitution in such a way that it allows for an 18-year-old U.S. President (with the argument being that the 26th Amendment implicitly amends the 35-year age requirement for the U.S. Presidency as well as all other age requirements for federal offices to make all of them 18 years).^[26] Also, Lund argues that if living originalism could be used to justify a constitutional right to same-sex marriage, then 'it would be child’s play to construct the Fourteenth Amendment into a shield for polygamy, prostitution, incest (at least among adults), polyamorous marriages, and a variety of other unorthodox sexual relationships.'^[26] Finally, Lund argues that '[w]hatever one’s reasons for accepting Balkin’s proposal to marry originalism and living constitutionalism, doing so leaves originalism itself in a condition akin to the legal death that married women experienced under the old rules of coverture.'^[26]

Methodology[edit]

In 'The Original Meaning of the Recess Appointments Clause', Michael B. Rappaport described the methodology associated with the 'original meaning' form of originalism as follows:

• 'The task is to determine the original meaning of the language .. that is, to understand how knowledgeable individuals would have understood this language .. when it was drafted and ratified. Interpreters at the time would have examined various factors, including text, purpose, structure, and history.'
• 'The most important factor is the text of the Clause. The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s. Permissible meanings from that time include the ordinary meanings as well as more technical legal meanings words may have had.'
• 'If the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity. Purpose, structure, and history provide evidence for determining which meaning of the language the authors would have intended.'
  • 'The purpose of a Clause involves the objectives or goals that the authors would have sought to accomplish in enacting it. One common and permissible way to discern the purpose is to look to the evident or obvious purpose of a provision. Yet, purpose arguments can be dangerous, because it is easy for interpreters to focus on one purpose to the exclusion of other possible purposes without any strong arguments for doing so.'
  • 'Historical evidence can reveal the values that were widely held by the Framers' generation and that presumably informed their purposes when enacting constitutional provisions. History can also reveal their practices, which when widely accepted would be evidence of their values.'
  • 'The structure of the document can also help to determine the purposes of the Framers. The decision to enact one constitutional clause may reveal the values of the Framers and thereby help us understand the purposes underlying a second constitutional clause.'
• 'One additional source of evidence about the meaning of constitutional language is early constitutional interpretations by government officials or prominent commentators. .. Such interpretations may provide evidence of the original meaning of the provisions, because early interpreters would have had better knowledge of contemporary word meanings, societal values, and interpretive techniques. Of course, early interpreters may also have had political and other incentives to misconstrue the document that should be considered.' (Id. at 5–7).

Discussion[edit]

Philosophical underpinnings[edit]

Originalism, in all its various forms, is predicated on a specific view of what the Constitution is, a view articulated by Chief Justice John Marshall in Marbury v. Madison:

[T]he constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?

Originalism assumes that Marbury is correct: the Constitution is the operating charter granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the Presidency, two chambers of Congress and the Supreme Court at the national level, and State governments of the United States with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. As one author stated, 'If the constitution can mean anything, then the constitution is reduced to meaninglessness.'^[27]

Function of constitutional jurisprudence[edit]

Dissenting in Romer v. Evans, Scalia wrote:

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.

This statement summarizes the role for the court envisioned by originalists, that is, that the Court parses what the general law and constitution says of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven D Smith's book Law's Quandary, Scalia applied this formulation to some controversial topics routinely brought before the Court:

It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would 'expel from the domain of legal issues .. most of the constitutional disputes that capture our attention', such as 'Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?' If we should read English as English, Smith bemoans, 'these questions would seemingly all have received the same answer: 'No law on that one.''

That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law.^[28]

In Marbury, Chief JusticeJohn Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the federal government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that—since U.S. v. Darby, in which Justice Stone (writing for a unanimous Court) ruled that the Tenth Amendment had no legal meaning—the Court has increasingly taken to making rulings^[29] in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is 'morally correct' at this point in the nation's history, in terms of 'the evolving standards of decency' (and considering 'the context of international jurisprudence'), and then justified that determination through a 'creative reading' of the text. This latter approach is frequently termed 'the Living constitution'; Scalia inveighed that 'the worst thing about the living constitution is that it will destroy the constitution'.^[30]

Matters rendered moot by originalism[edit]

Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.

In an originalist interpretation, if the meaning of the Constitution is static, then any ex post facto information (such as the opinions of the American people, American judges, or the judiciaries of any foreign country) is inherently valueless for interpretation of the meaning of the Constitution, and should not form any part of constitutional jurisprudence. The Constitution is thus fixed and has procedures defining how it can be changed.

The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone's Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.

Pros and cons[edit]

Arguments for and against Originalism should be read in conjunction with alternative views and rebuttals, presented in footnotes.

Arguments favoring originalism[edit]

The Tools And Techniques Of Judicial Creativity And Precedent Science

• If a constitution no longer meets the exigencies of a society's 'evolving standard of decency', and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The Living Constitution approach would thus only be valuable in the absence of an amendment process.
• Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the 'opinion of this Court [rest] so obviously upon nothing however the personal views of its members'.^[31] Scalia has averred that 'there is no other' criterion to constrain judicial interpretation.^[32]
• Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.
• If a constitution as interpreted can truly be changed at the decree of a judge, then '[t]he Constitution .. is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,' said Thomas Jefferson.^[33] Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.
• The Ninth Amendment is sometimes cited by critics to attack originalism. Self-described originalists have been at least as willing as judges of other schools to give the Ninth Amendment no substantive meaning or to treat it as surplusage duplicative of the Tenth Amendment. Bork described it as a Rorshach blot and claimed that the courts had no power to identify or protect the rights supposedly protected by it. Scalia held similarly: '[T]he Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.' Troxel v. Granville 530 U.S. 57 (2000) (Scalia, J. Dissenting). Scalia's interpretation renders the Ninth Amendment entirely unenforcable and moot, which is clearly contrary to its original intent. However, this is a criticism of specific originalists—and a criticism that they are insufficiently originalist—not a criticism of originalism. The theory of originalism as a whole is entirely compatible with the Ninth Amendment. Alternative theories of originalism have been argued by Randy Barnett that give the Ninth Amendment more practical effect than many other schools of legal thought do.
• Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is there any requirement that they have to. There is room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Usually, that is easy to discern and simple to apply. Sometimes there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment of the U.S. constitution guarantee of 'the freedom of speech' apply to new technologies that did not exist when the guarantee was codified—to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires, and that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them.^[34]
• If the people come to believe that the constitution is not a text like other texts; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they elect to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the constitution ought to be. If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This suggests the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.^[34]

Arguments opposing originalism[edit]

• If one is then to look at the interpretation (or, meaning), which inheres at the particular time period, the question becomes: why is that reading the essential one? Or, restated, an essential reading, then, is owing to whom? Is it owing, then, to the meaning derived by the average person at that time? The collective intent of the voters who passed it? Or is it possible that they indeed entrusted the framers with the authority to draft the constitution; i.e., that the intent of the drafters should remain relevant? Originalism faces hermeneutic difficulties in understanding the intentions of the Founding Fathers, who lived 200 years ago (original intent), or the context of the time in which they lived (original meaning). Justice Scalia accepted this problem: 'It's not always easy to figure out what the provision meant when it was adopted .. I do not say [originalism] is perfect. I just say it's better than anything else'.^[35]
• Legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original 'meaning' of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement.
• It could be argued (as, for example, Justice Breyer has) that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process.
• Originalists often argue that, where a constitution is silent, judges should not read rights into it (i.e. a textualist interpretation).^{[citation needed][36]} However, the Ninth Amendment, seen through an originalist lens, can be seen as providing the judiciary with means of protecting rights^[clarify] which the founders had not thought, for whatever reasons, to explicitly list, such as rights involving abortion, gender and sexual orientationequality, and capital punishment. This presents a particular challenge to the theory of Original Intent, which seems to thus suggest just the opposite of what the text of the Constitution and original intent of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism. The subsequent Tenth Amendment, detailing non-enumerated rights as the sole property of the states and the people, is often cited as the clarification for this inconsistency and the reason why the federal courts have no say in affirming or denying said rights per the Ninth Amendment.
• Originalism allows the dead hand of prior generations to control important contemporary issues to an extraordinary and unnecessary level of detail. While everyone agrees that broad constitutional principles should control, if the question is whether abortion is a fundamental right, why should past centuries-old intentions be controlling? The originalist's distinction between original meaning and original intention here is unclear due to the difficulty of discussing meaning in terms of specific details that the Constitutional text does not clarify.
• In writing such a broad phrase such as 'cruel and unusual', it is considered implausible by some that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as 'cruel and unusual,' rather, is specifically not to specify which punishments are forbidden, but to create a flexible test that can be applied over future centuries. Stated alternatively, there is no reason to think the framers have a privileged position in making this determination of what is cruel and unusual; while their ban on cruel punishment is binding on us, their understanding of the scope of the concept 'cruel' need not be.
• If applied scrupulously, originalism requires the country either to continually reratify the Constitution in order to retain contemporary standards for tests such as 'cruel and unusual punishment' or 'unreasonable searches and seizures,' or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is too burdensome, while the second is already inherently implied.

Arguments against some of the proponents of originalism[edit]

• Critics argue that originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the 'rules' of originalism are sometimes 'bent') to reach desired ends, no less so than the Living Constitution. For example, Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the originalist justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist's concurrence in Bush v. Gore, 531U.S.98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528U.S.990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994)).

See also[edit]

Footnotes[edit]

1. ^ ^abB. Boyce, 'Originalism and the Fourteenth Amendment', 33 Wake Forest L. Rev. 909
2. ^Ackerman, Bruce (January 1, 2017). 'The Holmes Lectures: The Living Constitution'. Yale University Law School.
3. ^Vloet, Katie (September 22, 2015). 'Two Views of the Constitution: Originalism vs. Non-Originalism'. University of Michigan Law.
4. ^Brest, Paul. (1980). The Misconceived Quest for the Original Understanding. Boston University Law Review, 60, 204–238.
5. ^L. Solum, 'Semantic Originalism', Illinois Public Law Research Paper No. 07-24
6. ^The University of Chicago, The Law School 'I am not a strict constructionist, and no one ought to be.'
7. ^'Archived copy'. Archived from the original on December 19, 2005. Retrieved December 16, 2005.CS1 maint: Archived copy as title (link)
8. ^'Archived copy'. Archived from the original on December 16, 2005. Retrieved December 16, 2005.CS1 maint: Archived copy as title (link)
9. ^Wil Gerken; Nathan Hendler; Doug Floyd; John Banks. 'News & Opinion: Who Would Bush Appoint to the Supreme Court? (The Boston Phoenix . 04-10-00)'. Retrieved March 19, 2016.
10. ^See Smith v. United States, 508 U.S. 223 (1993)
11. ^A. Scalia, A Matter of Interpretation, ISBN978-0-691-00400-6, Amy Guttman ed. 1997, at p.23.
12. ^Barnett, The Original Meaning of the Commerce Clause
13. ^Robert H. Bork (January 1971). 'Neutral Principles and Some First Amendment Problems'. Indiana Law Journal 1. Retrieved April 1, 2016 – via Digitalcommons.law.yale.edu.
14. ^Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
15. ^See, for example, Powell, 'The Original Understanding of Original Intent', 98 Harv. L. Rev. 885 (1985)
16. ^See also, W. Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence
17. ^See 'A Matter of Interpretation', supra; see also, A. Scalia, Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849.
18. ^See R. Bork, The tempting of America: The political seduction of the law.
19. ^See R. Barnett, An Originalism for non-Originalists, 45 Loy. L. Rev. 611; R. Barnett, Restoring the Lost Constitution.
20. ^O. W. Holmes, Collected Legal Papers, ISBN978-0-8446-1241-6, p.204
21. ^'Thomas Sowell Articles – Political Columnist & Commentator'. townhall.com. Retrieved March 19, 2016.
22. ^See A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96.
23. ^Barnett, Randy. Restoring the Lost Constitution, p. 95 (Princeton U. Press 2013).
24. ^Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law, p. 144 (Princeton University Press 1998).
25. ^Balkin, Jack (February 16, 2009). 'Framework Originalism and The Living Constitution, Public Law & Legal Theory Research Paper Series' Yale Law School. Retrieved July 27, 2013.
26. ^ ^abcd[1]
27. ^'The New Guard'. Retrieved March 19, 2016.
28. ^A. Scalia, Law & Language; First Things, November 2005
29. ^See, for example, Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Morrison v. Olson, 487 U.S. 654 (1988); Lawrence v. Texas, 539 U.S. 558 (2003); Roper v. Simmons, Docket No. 03—633 (2005); Kelo v. City of New London, Docket No. 04-108 (2005).
30. ^See Scalia, Constitutional Interpretation, speech at Woodrow Wilson International Center 3/14/05
31. ^See Atkins v. Virginia, 536 U.S. 304 (2002) (Scalia, dissenting)
32. ^Scalia, Woodrow Wilson speech, supra
33. ^'Thomas Jefferson to Spencer Roane'. Retrieved April 5, 2017.
34. ^ ^abCommon-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws
35. ^'Scalia talks up 'originalism' in UVM speech : Times Argus Online'. Retrieved March 19, 2016.
36. ^2017 (February 10, 2017). 'Neil Gorsuch Is Trump's Best Revenge for Judicial Activism'. The Daily Signal. Retrieved May 9, 2017.

References[edit]

• Originalism: The Quarter-Century of Debate (2007) ISBN978-1-59698-050-1.
• Jack N. Rakove. Original Meanings: Politics and Ideas in the Making of the Constitution (1997) ISBN978-0-394-57858-3.
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (2001) ISBN978-0-7006-1141-6.
• Vasan Kesavan & Michael Stokes Paulsen. 'The Interpretive Force of the Constitution's Secret Drafting History,' 91 Geo. L.J. 1113 (2003).
• Randy E. Barnett. Restoring the Lost Constitution (2005) ISBN978-0691123769.
• Gary Lawson. 'On Reading Recipes .. and Constitutions,' 85 Geo. L.J. 1823 (1996–1997) .

External links[edit]

• Why Originalism Is So Popular, by Eric A. Posner, The New Republic
• Justice Scalia lecture at CUA, discussing originalism (1996)
• Justice Scalia lecture at Woodrow Wilson Center, comparing and contrasting originalism from the 'living constitution' approach (2005)
• Legal Theory Lexicon entry on Originalism
• Originalism: The Lesser Evil, by Antonin Scalia (57 U. Cin. L. Rev. 849)
• An Originalism for Nonoriginalists, by Randy Barnett
• 'Original Intent and Purpose of the Second Amendment' GunCite.com
• 'Original Intent and The Free Exercise of Religion' Joseph A. Zavaletta, Jr., Esq
• 'Constitutional Issues of Taxation' Original Intent.org
• Trumping Precedent with Original Meaning: Not as Radical as It Sounds, by Randy Barnett
• The Founders Constitution Founding-era materials
• American Patriot Party Founding-era Principles
• 'Judicial Activism Reconsidered', by Thomas Sowell
• Jack Balkin, Bad originalism
• Jack Balkin, Scalia blowing smoke
• Ed Brayton, Balkin on 'Bad Originalism'
• JustOneMinute, The NY Times finds a codebreaker
• Ed Whelan, Boiling the Frog (reviewing Cass Sunstein's Radicals in Robes)