Judicial Activism

Madoff fund trustee pursuits Mets football club

2011-02-05T12:31:00.001-08:00

The current legal action by the trustees of the Madoff investment fund ponsi scam is interesting. They are taking the Mets football club to court, arguing that the owners of the Mets benefited from his patronage to the tune of $1 billion. This is interesting because:

1. They are suggesting that these football club owners ought to, or did in fact, know that Madoff was a fraud. This strikes me as a difficult case to make

2. I think the club is more likely to be found liable because it is the recipient of stolen funds. Fraud is no different from stealing, so in what sense is the Mets not the recipient of stolen goods. Its liability however should not be the full amount of the money Madoff invested/contributed, but rather the difference in value, otherwise the Mets, who are less culpable for any fraud, will be punished for a risk that most clearly lies with the investor.

What of the fact that the Mets Stirling family had $500 million invested with Madoff - all of which they lost. Have they lost enough? Well, under law the Stirling family is a discrete business entity separate from the Mets, so one might expect that the trustees have a case.

There is more damming evidence still:

"The chief investment officer at Sterling Stamos, a hedge fund independent of Mr. Madoff in which Mr. Wilpon and Mr. Katz invested, said he repeatedly warned the men and their families that Mr. Madoff’s returns were “too good to be true.” Other senior officers at the Stamos fund expressed similar concerns about Mr. Madoff".

Suspicions though do not constitute evidence. If you present 'suspicions' to the Securities Commission they will not investigate. That is the problem with government regulators, they are politically motivated. Perceptions are more important that facts, and suspicions are less than facts. It didn't have a chance of budging the regulators, so I don't see this as important. I would not have been surprised if there were rumours going around the financial community. There often are, and they are not acted upon.

Much of the lawsuit appears frivolous, however I do think that there is some validity to the lawsuit insofar as 'profits' from the Madoff enterprise, which one credibility through its support of the Mets. No doubt it was an instrument for finding more investors for Madoff.

Declining spend on Miami justice

2011-01-04T10:22:00.000-08:00

From this Miami Herald article, it is apparent that governments stand ready to cut spending on justice because they are simply so wasteful with money.

I think both sides of this debate miss the point.

Yes, the judiciary is important, but that depends upon what it is that the judiciary is enforcing. We had a pretty good common law system, and it was thrown out with the bath water in sympathy to the desires of legislators to develop statutory law. Statutory law is not an objective (rational) standard of justice. It is based on legislature appeasement, concessions/exemptions, etc, as opposed to principles held in context of other principles. It has resulted in justice descending to arbitrary law, which we of course associate with arbitrary authoritarian rule. Democracy is thus merely a legitimatised form of tyranny.

Plans to cut spending on judiciary invoke plans to cut back upon the most important aspect of govt work. Quite the paradox don't you think?

Arbitrary statutes are eroding personal freedoms

2010-09-13T21:28:00.000-07:00

Think we have a good justice system? Think again. Here we have a case of a govt agency with the arbitrary powers established by the legislature, imposing huge fines on businesses. The setting is a typical Western democracy - New Zealand. The context is a dairy farm being punished punitively for pollution. Presumably allowing urine or excrement to leak into the 'public' water catchments. I am not defending the practice where it occurs, and have no idea if it occurred in this case. The question however is - whether the government ought to have the power to apply punitive punishments arbitrary. There might be a vague principle or value justifying these actions. The problem is the law is being applied as a dogma - which means out of context. The implication is that the courts are actually acting as the Nazi youth squad. This is scary. Paradoxically, it is being done in the name of science. Worse still is that this case was denied an appeal.

These farmers may have broken the rules, but how legitimate are the rules. If this was a private civil matter, the counterparty would have to prove real damages, and the damages would reflect the impact of their actions. But with govt, we just have arbitrary rules developed under democracy, the tyranny of the minority. Yes, it only takes greens holding the balance of power. Today its ACT holding the balance of power, in future it could be the Greens Party, as it is in Australia. If you want to stop this, you need to be vigilant. The whole justice system is going down the toilet. Democracy sux people! Wake up. Its not just farming. It could be animal rights, or water usage in the wake of the climate change scandal. So called science is used illegitimately because 90% of scientists are idiots with no critical thinking skills.

The problem with lawyers: At Judicial Analytics, we help defendants fight 'moral law'. We are the only defense you will find against such injustices. Why? Because most lawyers think their job is to fight or argue points of 'arbitrary' statutory law. We work above the law, but analysing the premises which gave rise to those laws. We are not lawyers, we are philosophers. Lawyers are pragmatic because the law is pragmatic, but they neglect the context in which those laws were developed.

The needs of defendants: We are therefore on the look-out for cases where people feel they have been mistreated by the law.

Partnerships with law firms: We are also looking for barristers in each Western market interested in working with us, as we are looking to act as a conduit for new business.

Justice Stephen Breyer on the origin of judicial activism

2009-08-15T05:20:00.000-07:00

In this video footage US Justice Stephen Breyer provides details on the historical origin of the phase 'judicial activism', as well as some ideas as to the context in which the context has been applied.

Anthony Lewis on the history of judicial activism

2009-08-15T05:06:00.000-07:00

In this video we have some comments by Anthony Lewis on the history of judicial activism.

He appears to dislike the term 'judicial activism', and prefers the term 'bold' or 'courageous' rulings, but in essence there is nothing inherently wrong with the word 'activism'. There is nothing wrong with judges making rulings based on personal values; afterall it would be desirable that judges values are consonant with the facts of reality, and that the laws of the country are correspondingly so as well. The alternative 'conservatism' is really nothing more than 'rationalism'; that is, the assertion of a claim based on floating premises with lack grounding by either the coherence or correspondence theories of truth.

Retiring Justice Sandra Day on Judicial Activism

2009-08-15T04:49:00.000-07:00

The judiciary is clearly dismayed by criticism of judges for engaging in 'judicial activism'. These comments from the retiring Justice Sandra Day:

A voice for judicial activism in the USA

2009-08-13T22:48:00.000-07:00

Judge Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. While on the bench from 1987 to 1995, Judge Napolitano tried more than 150 jury trials and sat in all parts of the Superior Court -- criminal, civil, equity and family. He has handled thousands of sentencings, motions, hearings and divorces. For 11 years, he served as an adjunct professor of constitutional law at Seton Hall Law School, where he provided instruction in constitutional law and jurisprudence. In this interview he provides a strong and animated argument for judicial activism....

See Fox News for a complete profile.

About Judicial Analytics

2009-08-06T15:40:00.000-07:00

Our Role
Judicial Analytics is dedicated to assisting complainants and solicitors bring about successful court proceedings in the highest court in their respective jurisdiction. We provide assistance by helping solicitors develop ethical arguments to support their cases. The problem for most solicitors is that they don’t have the philosophical training to mount an ethical defence for their clients through the court system. There is a tendency for the solicitors to accept two premises - that:
1. Parliamentary legislation has primacy over Common Law.
2. The judiciary's sole concern is compliance with the law as opposed to correspondence with the facts of reality

The problem is that the judiciary and solicitors in each jurisdiction tend to neglect the opportunity to argue for a ‘natural law’ interpretation of their respective constitutions. Every country has its own constitution which establishes a legal framework. Regardless of the framework, most are based on the British model, with some variations. We will argue that there is an opportunity to defend legal cases in the highest courts on the premise that "the judiciary is obliged to hold a rational standard of value" as opposed to simply complying with "the rule of law". Our value proposition is that we provide a ‘natural law’ interpretation of the law, as well as helping solicitors develop objective arguments to cater for the specific values of particular judges.

Our services
Judicial Analytics provides a number of services to prospective complainants and solicitors seeking to take action through the highest courts in any Western-style legal jurisdiction. We provide the following:

1. Relationships with solicitors in each country whom work with us to fight the current arbitrary statutes enacted by legislators. We provide objective arguments to allow the judiciary to adopt progressive interpretations of the Constitution and case evidence.
2. We are developing a database to allow solicitors to profile judges around the world allowing solicitors to achieve the best possible outcome.
3. We develop arguments to support cases where ‘rule of (statutory) law interpretations would otherwise lead to an unfavourable outcome.
4. We act as an advocacy for judicial activism to ensure the objective protection of rights under natural law where current statutory law is ambiguous.

There is of course no possibility of guaranteeing results. The fact remains that the judiciary is only accountable for its rulings after the fact, and sparingly so. This remains one of the greatest shortcomings in our legal system – its lack of respect for objectivity, which can only reduce the standing of judges which are perceived to offer some semblance of ‘objective interpretation’.

Who we can help
We can only help people who hold 'natural law' principles (whether implicitly or explicitly) and apply them to the specific context in which those laws apply to them. We cannot help claimants defend illegitimate acts. We can only assess the merits of a case on a case-by-case basis.

For further information on our objectives refer to our report on global efforts to sponsor judicial activism.

Establishment of Judicial Analytics

2009-08-06T15:20:00.000-07:00

Judicial Analytics was established in July 2009 in order to assist legal advisors and complainants to develop ethical arguments to mount court cases which challenge the contemporary interpretation of Western constitutions.

The decision by our team to establish Judicial Analytics as a business unit arose in response to the declining quality of Western governance. Voters have traditionally relied upon our government to protect our freedoms. In recent years the trend has become clear. Western governments are intent on entrenching and expanding their own powers at the expense of voters. Shortsighted business leaders are all too willing to comply with government's stipulations in order to win any short-sighted financial concession.
I say corporate leaders are short-sighted because they fully embrace the Keynesian philosophy of government stimulus believing that its 'good for business'. What they neglect to realise is that:
1. Governments require arbitrary powers to execute the program, giving government the power to enslave.
2. Governments are about as useful as desert plains when it comes to managing the economy, or any facet of government
3. Government stimulus is not sustainable. The only reason it might appear so is because every correction requires an injection of new equity resulting in dilution in the value of your money.

The signs are there for everyone to see. Inflation in prices. Look at the actual prices, not the distorted measure (i.e. The Consumer Price Index) provided by governments. Another sign is the fact that workers are being asked to defer retirement from age 65 yo to 68-70yo. The argument necessitating longer working hours is that a higher proportion of the population is senior citizens, and that we are living longer. This is true enough but the expansion of productivity would be more than enough to adjust for these factors if government wasn't stiffling economic growth. There are several ways that government stiffles economic growth:
1. Under provisioning for good regulation (justice)
2. Over privisioning for bad regulation (taxation, silly arbitrary laws)
3. Over-spending on welfare which does not reward good behaviour
4. Under-spending on Capacity building - which would be better undertaken by the private sector.

The role of Judicial Analytics is to provide support to solicitors and complainants who want to take action against any Western government. We provide a range of services to assist the client achieve fair or just outcomes from their legal action. We confine our participation to High Court or Supreme Court action, as this is where ultimately Constitutional matters are resolved. More about Judicial Analytics in our next blog post.