Beyond Judicial Minimalism
Cass R. Sunstein
Harvard Law School
September 25, 2008
Harvard Public Law Working Paper No. 08-40
U of Chicago, Public Law Working Paper No. 237
U of Chicago Law & Economics, Olin Working Paper No. 432
Harvard Law School Program on Risk Regulation Research Paper No. 08-6
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, nonminimalist 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.
Number of Pages in PDF File: 25
Keywords: minimalism, standards, rules, constitutional interpretation
Date posted: September 28, 2008 ; Last revised: November 17, 2008
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