To: DMaA who wrote (95513 ) 11/30/2000 11:43:56 AM From: lawdog Respond to DMA, you have a point. The American system of jurisprudence relies heavily on precedent, common law and statutes. We have a Constitutional system that recognizes state autonomy for many areas of governance so there can be a wide discrepancy in the laws applied in different parts of the county. At times our laws can contradict one another and occasionally attorneys take advantage of this conflict to the advantage of their clients. This is not judicial activism. This is merely the result of a legal system that places emphasis on zealous advocacy , argumentation, and hundreds of years of legal precedent. Judicial advocacy, as is the bane of many on the right side of the aisle, results from judge "written" law. The best example is probably Roe v. Wade or any of the other cases that the Supreme Court has decided using the "penumbra" concept for interpreting the Constitution. Justices like Scalia want to read only the literal language in the Constitution, the four corners approach, and object strongly to the living document interpretation preferred by a majority of the justices. Personally, I prefer the majority view, although I have the highest respect for Scalia as a brilliant man (unlike Thomas). Now, is it wrong for Judges to use creativity in interpreting laws? I say No. The only time judges have the leverage they require to liberally interpret statutes is when the legislature has done a poor job in drafting. If the law is unclear or contradicts other parts of the law they must, as a duty to out democracy, interpret that law and clarify it. The legislature may be unhappy with the outcome and may pass a new law to clarify the rule, but it was their mistake that caused the court to be forced to clarify. Well written, clear and concise laws leave very little room for even the best attorneys. I think most attorneys prefer clear rules, contrary to your position. Unlcear laws create malpractice issues that most attorneys would prefer to avoid.
