Academic

Sunstein on Judicial Minimalism

By Lawrence Solum

Cass R. Sunstein (Harvard University - Harvard Law School) has posted Beyond Judicial Minimalism on SSRN. Here is the abstract:

Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.

I would have provided excerpts and commentary, but this is an image file.  (And I'll never get anything else done if I start retyping papers into Legal Theory Blog!) 

This is an important extension of Sunstein's theory of judicial minimalism--essential reading for anyone interested in general jurisprudence.  Highly recommended.  Download it while its hot.

Full post as published by Legal Theory Blog on September 30, 2008 (boomark / email).