Preliminary Thoughts on the Virtues of Passive Dialogue
Cornell Law School
Akron Law Review, Vol. 34, No. 1, 2000
The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?
Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this debate and tests these models from the vantage point of one specific jurisprudence - school finance - and within a discrete judicial setting - state supreme courts. While this vantage point limits my analysis, it offers the advantage of keeping the judicial context constant so as to better isolate the differences that separate the consequences flowing from the active and passive judicial participation models. Although school finance decisions by state supreme courts are structurally tilted in a manner favorable to the active model, results from a modest comparison provide more support for the passive model.
Accepted Paper Series
Date posted: April 27, 2001
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