Abstract

http://ssrn.com/abstract=1658198
 
 

Footnotes (165)



 


 



Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago


Nelson Lund


George Mason University School of Law

August 12, 2010

Florida Law Review, Vol. 63, No. 3, pp. 487-532, May 2011
George Mason Law & Economics Research Paper No. 10-39

Abstract:     
“Judicial restraint” and its counterpart “judicial activism” are widely regarded as meaningless terms, useful primarily as rhetorical weapons with which to praise or condemn judicial decisions about which the speaker has strong feelings. The terms certainly are frequently used in that manner, but there may also be analytically distinct forms of judicial restraint to which different judges adhere. Academic commentators have articulated and defended various theories of judicial restraint, but my purpose here is to examine the debate “at work,” so to speak, in an actual case.

The Court’s recent Second Amendment incorporation decision, McDonald v. Chicago, is an especially interesting example because strikingly different models of judicial restraint are adopted by subsets of the more conservative wing of the Court, and subtly different models are adopted by subsets of the more liberal wing. A close look at the opinions in the case suggests that each model has different strengths and weaknesses, but also that they are by no means created equal. Surprisingly, perhaps, the most radical sounding opinion in the case may on balance be the most restrained.

Number of Pages in PDF File: 47

Keywords: Breyer, Cass Sunstein, Citizens United v. FEC, confirmation hearings, Earl Warren Court, Elena Kagan, Federalism, Frank Easterbrook, Heller v. District of Columbia, John Roberts, Louis Michael Seidman, Originalism, Richard Posner, Robert Bork, Samuel Alito, Sonia Sotomayor, Stevens, Supreme Court

Accepted Paper Series





Download This Paper

Date posted: August 14, 2010 ; Last revised: March 23, 2011

Suggested Citation

Lund, Nelson, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago (August 12, 2010). Florida Law Review, Vol. 63, No. 3, pp. 487-532, May 2011; George Mason Law & Economics Research Paper No. 10-39. Available at SSRN: http://ssrn.com/abstract=1658198

Contact Information

Nelson Robert Lund (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 1,344
Downloads: 200
Download Rank: 89,179
Footnotes:  165

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.297 seconds