Foreword, The Supreme Court, 1995 Term: Leaving Things Undecided
Cass R. Sunstein
Harvard Law School
Harvard Law Review, 1996.
This essay offers a qualified defense of "decisional minimalism" -- the idea that courts should minimize the burdens of decision and the likelihood and seriousness of errors by offering the narrowest rationale necessary to defend an outcome. It distinguishes between "shallowness" and "narrowness" and explains the values served by each. It applies the analysis of minimalism not only to Dred Scott, Brown v. Bd., and Roe v. Wade, but also to the central cases of the past term (above all Romer v. Evans, which it defends as salutary minimalism) and future disputes over the right to die, same-sex marriage, and affirmative action.
Accepted Paper Series
Date posted: December 20, 1996
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