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Tuesday, May 26, 2009

Empathy

Let us say that the there is an established principle of law that says, when two parties enter into a contract drafted by one of the parties, and where the non-drafting party has no opportunity to negotiate the terms of the contract (that is, it is a take it or leave it situation), the terms of the contract are nonetheless valid, except in situations where no reasonable party would have accept the term if the party understood the term. (see adhesion contract) Interpreting this principle to apply the law to it requires understanding where the non-drafting party is coming from. To simply always interpret the concept in favor of the business is an exercise is activism, by removing the teeth of this modest principle of consumer protection.

Let us say that there is a provision in the Constitution which does not provide strict guidance on its restriction on State power. Rather it provides a general principle like prohibiting excessive fines or cruel and unusual punishment. (see 8th Amendment) There is no strict letter of the law to apply there. The Constitution says, "Hey, Congress, hey Supreme Court, figure this out." To use only ivory tower elite definitions of excessive fines or cruel and unusual punishment is contrary to the democratic spirit of the Constitution.

A major role of the law is to provide stability. But another major role is to protect the less powerful from the more powerful by setting out rules and limits. It would be good to have a justice who at least thought about the latter.

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