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June 20, 2018

3/1/2009 7:24:00 PM
Can O' Worms #10
Interpretation & Arbitration



Law Encyclopedia: Interpretation

Interpretation is the art or process of determining the intended meaning of a written document, such as a constitution, statute, contract, deed, or will. The interpretation of written documents is fundamental to the process and practice of law. Interpretation takes place whenever the meaning of a legal document must be determined. Lawyers and judges search for meaning using various interpretive approaches and rules of construction.

In constitutional and statutory law, legal interpretation can be a contentious issue.

Legal interpretation may be based on a literal reading of a document. For example, when John Doe signs a will that names his wife, Jane Doe, as his personal representative, his intent to name her the administrator of his estate can be determined solely from the specific language used in the will. There is no need to consider the surrounding facts and circumstances that went into his choice. When the intended meaning of the words in a document is obscure and conjecture is needed to determine the sense in which they have been used, mixed interpretation occurs. In such a case, the words express an individual's intent only when they are correctly comprehended.

If John Doe refers only to "my wife" in his will, a probate court will have to determine who his wife was at the time of his death. How a lawyer or judge ascertains intent when words are unclear is typically governed by rules of construction. For example, the general definition of a word will govern interpretation, unless through custom, usage, or legal precedent a special meaning has been attached to the term.

When a court interprets a statute, it is guided by rules of statutory construction. Judges are to first attempt to find the "plain meaning" of a law, based solely on the words of the statute. If the statute itself is not clear, a court then may look to extrinsic evidence, in this case legislative history, to help interpret what the legislature meant when it enacted the statute.

It is now common practice for statutes to contain "interpretation clauses," which include definitions of key words that occur frequently in the laws. These clauses are intended to promote the plain meaning of the law and to restrict courts from finding their own meaning.

Concern over whether courts apply strict or liberal methods of interpretation has generated the most controversy at the constitutional level. How the U.S. Supreme Court interprets the Constitution has been widely debated since the 1960s. Critics of the Warren Court, of the 1950s and 1960s, charged that the Court had usurped the lawmaking function by liberally interpreting constitutional provisions.

This criticism led to jurisprudence of "original intent," a philosophy that calls on the Supreme Court and other judges to seek the plain meaning of the Constitution. If plain textual meaning is lacking, the justices should attempt to determine the original intentions of the Framers.

Those who advocate an original intent method of interpretation also emphasize the need for the justices to respect history, tradition, and legal precedent. Opponents of original intent jurisprudence argue that discerning the intent of the Framers is impossible on many issues.

Even if the original intent is knowable, some opponents believe that this intent should not govern contemporary decision making on constitutional issues. In their view the Constitution is a living document that should be interpreted according to the times. This interpretive philosophy would permit justices to read the Constitution as a dynamic document, with contemporary values assisting in the search for meaning.

Law Encyclopedia: Strict Construction

Strict construction is a close or narrow reading and interpretation of a statute or written document.

Judges are often called upon to make a construction, or interpretation, of an unclear term in cases that involve a dispute over the term's legal significance. The common-law tradition has produced various precepts, maxims, and rules that guide judges in construing statutes or private written agreements such as contracts.

Strict construction occurs when ambiguous language is given its exact and technical meaning, and no other equitable considerations or reasonable implications are made.

A judge may make a construction only if the language is ambiguous or unclear. If the language is plain and clear, a judge must apply the plain meaning of the language and cannot consider other evidence that would change the meaning.

If, however, the judge finds that the words produce absurdity, ambiguity, or a literalness never intended, the plain meaning does not apply and a construction may be made.

Strict construction is the opposite of liberal construction, which permits a term to be reasonably and fairly evaluated so as to implement the object and purpose of the document. An ongoing debate in U.S. law concerns how judges should interpret the law. Advocates of strict construction believe judges must exercise restraint by refusing to expand the law through implication. Critics of strict construction contend that this approach does not always produce a just or reasonable result.

Law Encyclopedia: Arbitration

Arbitration is the submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award - a decision to be issued after a hearing at which both parties have an opportunity to be heard.

Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of alternative dispute resolution, which provide parties to a controversy with a choice other than litigation.

Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to comply with the arbitrator's award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator's decision is usually final, and courts rarely reexamine it.

Traditionally, labor and commerce were the two largest areas of arbitration. However, since the mid-1970s, the technique has seen great expansion. Some states have mandated arbitration for certain disputes such as auto insurance claims, and court decisions have broadened its scope into areas such as securities, antitrust, and even employment discrimination.

Arbitration can be voluntary or required. The traditional model is voluntary, and closely linked to contract law: parties often stipulate in contracts that they will arbitrate, rather than litigate, when disputes arise. For example, unions and employers almost always put an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate any future employee grievances over wages, hours, working conditions, or job security - in essence, they agree not to sue if disagreements occur.

Mandatory arbitration is a more recent phenomenon. States such as Minnesota, New York, and New Jersey have enacted statutes that force disputes over automobile insurance claims into this forum. In addition, courts sometimes order disputants into arbitration.

In theory, arbitration has many advantages over litigation. Efficiency is perhaps the greatest.

Proponents say arbitration is easier, cheaper, and faster. Proponents also point to the greater flexibility with which parties in arbitration can fashion the terms and rules of the process. Furthermore, although arbitrators can be lawyers, they do not need to be. They are often selected for their expertise in a particular area of business, and may be drawn from private practice or from organizations such as the American Arbitration Association (AAA), a national nonprofit group founded in 1926.

Significantly, arbitrators are freer than judges to make decisions, because they do not have to abide by the principle of stare decisis (the policy of courts to follow principles established by legal precedent) and do not have to give reasons to support their awards (although they are expected to adhere to the Code of Ethics for Arbitrators in Commercial Disputes, established in 1977 by the AAA and the American Bar Association).

The charge is frequently made that arbitration only results in "splitting the baby" - dividing awards evenly among the parties. The AAA rebuts this claim: its 1993 statistics for construction cases show that only 11 percent of the awards were divided equally. Yet even arbitrators agree that as arbitration has become increasingly formal, it sometimes resembles litigation in its complexity.

This may not be an inherent problem with the process as much as a result of flawed use of it. Parties may undermine arbitration by acting as lawyers do in a lawsuit: excessively demanding discovery (evidence from the other side), calling witnesses, and filing motions.

Most arbitration is considered binding: parties who agree to arbitration are bound to that agreement and also bound to satisfy any award determined by the arbitrator.

Courts in most jurisdictions enforce awards. Moreover, they allow little or no option for appeal, expecting parties who arbitrate to assume the risks of the process.

Source:

West's Encyclopedia of American Law. The Gale Group, Inc, 1998. Answers.com 01 Mar. 2009.





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