Judgment Calls: Principle and Politics in Constitutional Law
Vanderbilt University - Law School
Daniel A. Farber
University of California, Berkeley - School of Law
JUDGMENT CALLS: PRINCIPLE AND POLITICS IN CONSTITUTIONAL LAW, Oxford University Press, 2009
UC Berkeley Public Law Research Paper No. 1288146
Vanderbilt Public Law Research Paper No. 08-46
"Judgment Calls" addresses the problem of judicial discretion in constitutional law. Many political scientists and some prominent legal scholars suggest that constitutional adjudication is just politics in disguise. Others propose the use of methodologies like textualism or originalism to constrain what they view as an alarming degree of judicial discretion in interpretation. At bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middle ground.
We disagree. In this book, we argue that judging can be - and often is - both principled and flexible. In other words, we attempt to reconcile the democratic rule of law with the recognition that judges have discretion. We explain how judicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements.
In exploring how constitutional adjudication works in practice (and how it can be made better), the book covers a wide range of topics including judicial opinion-writing, the use of precedent, the judicial selection process, the structure of the American judiciary, and the nature of legal education. The book concludes with a careful look at how the Supreme Court has treated three of the most significant and sensitive constitutional issues: terrorism, abortion, and affirmative action.
Number of Pages in PDF File: 6Accepted Paper Series
Date posted: October 23, 2008 ; Last revised: December 8, 2008
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