Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide

Abstract:     
Debates over the proper function of courts tend to focus on delineating the outer limits of judicial authority. One of the primary concerns in these debates is the phenomenon often described as judicial activism. Although there is no fixed notion of precisely what constitutes judicial activism, the core idea is a concern about judges overstepping the bounds of their role, and somehow or other doing more than is proper.

What might be characterized as judicial inactivism, in contrast, has generally been overlooked. This is somewhat curious. Underlying concern about judicial inactivism is a recognition of the possibility that judges might fail to perform the minimal components of the judicial function. The consequences of such a judicial failure to act - typically the preservation of the status quo - will generally be no less significant than those resulting from judicial action. Indeed, since improper judicial inaction might be harder to detect than improper judicial action, one might suppose that we should be more concerned about judicial inactivism than we are about judicial activism.

This article attempts to provide an answer to the question of what judicial inactivism might look like. In so doing, it draws on previous efforts to articulate models of civil adjudication, and unites that literature with the largely distinct body of work addressing the topic of judicial candor. The goal is to articulate at least some of the components of the adjudicative duty - a court's minimal adjudicative obligations when presented with a justiciable claim over which it has jurisdiction. Thus it considers such questions as whether a court may, in effect, decide not to decide. And if there is a duty to decide, how far does it extend? Is it enough for the court merely to pick a winner, or must it confront the parties' claims and arguments? If the latter, should the court regard itself as bound by the parties' characterization of the dispute? How much must the court disclose about its decisional process?

Keywords: courts, judges, adjudication, judicial inactivism, judicial activism

JEL Classifications: K4, K40, K41

Accepted Paper Series