Reckless Caution: The Perils of Judicial Minimalism
New York University Journal of Law & Liberty, Vol. 5, No. 347, 2010
47 Pages Posted: 24 Mar 2012 Last revised: 9 Nov 2015
Date Written: 2010
Judicial Minimalism is the increasingly popular view that judges decide cases properly to the extent that they minimize their own imprint on the law by meticulously assessing 'one case at a time,' ruling on narrow and shallow grounds, eschewing broader theories, and altering entrenched legal practices only incrementally. Minimalism’s ascendancy across the political spectrum, being embraced by advocates of both right-wing and left-wing ideologies, is touted as a sign of its appropriate value-neutrality.
This paper argues that such sought-after neutrality is, in fact, untenable. While others have objected to some of Minimalism’s specific tenets, critics have missed its more fundamental failing: it is an incoherent concept. On analysis, Minimalism’s several planks and rationales prove mutually contradictory and, correspondingly, offer conflicting guidance to judges. Thus the reason that Minimalism can appeal to people of such disparate substantive views is that in practice, it is merely a placeholder invoked to sanction a grab-bag of desiderata rather than a distinctive method of decision-making that offers genuine guidance.
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