Expressive Minimalism and Fuzzy Signals: The Judiciary and the Role of Law
University of California, Irvine School of Law
Chicago-Kent Law Review, Vol. 84, p. 19, 2009
Minnesota Legal Studies Research Paper No. 10-48
In this article, Goodwin offers an alternative view of judicial minimalism. She emphasizes that minimalism or low-level signaling by the court is nonetheless expressive. In the realm of biotechnology, Goodwin argues, judicial minimalism might be driven by three factors: limited information; ambivalence; or an expectation that Congress will demarcate the appropriate boundaries and conduct for biotech actors. Goodwin urges an understanding of expressive minimalism as a form of judicial action as it has communicative force, even if it becomes misunderstood as ambivalence. The author hypothesizes that rather than motivating legislative action, or imbuing the bench with greater wisdom or information, expressive minimalism in the context of biotechnology will likely send fuzzy signals that will not be clear messages to the legislature. If this is correct, expressive minimalism will not result in legislative action. Goodwin is doubtful that fuzzy signals from the judiciary will promote the development of responsive public policy in contemporary biotechnology cases or those to come. Courts have the capacity to articulate principles that acknowledge minority interest when the legislature is captured by majoritarian interests. Therefore, expressive minimalism in the courts will undermine the legitimacy of timely, equitable claims initiated by plaintiffs. By that, the article suggests that expressive minimalism will be understood as denying the ripeness of some claims, or as implying that current law does not fit the futuristic-type problems common in biotech cases. Instead, defaults will be created whereby fuzzy messages will tend to absolve - or at least give a pass to - rogue biotech actors.
Number of Pages in PDF File: 37
Keywords: Law, Society, Economics, Medicine, Health Care
Date posted: September 26, 2010