Three Years of Hell to Become the Devil: Who's Afraid of the Big Bad Activist

« Useful Tool | Main | Technology and Law Reviews »

Who's Afraid of the Big Bad Activist

Prof. Larry Solum looks at the usefulness, or lack thereof, of the terms judicial activism and strict construction in his latest entry in the Legal Theory Lexicon. (Those of you studying Perspectives and Reg State, I highly recommend the whole series.) In turn, T. Moore over at Ex Post argues that activism isn't wholly useless as a term.

Prof. Solum is going to be here at Columbia today, and just like last year, I'm going to have to miss his lecture. Given that he was one of the people who helped me when this blog was young, I feel lousy about the fact that I've never been able to hear him when he's been in New York.

Posted by Anthony on April 5, 2005 1:35 PM | Permalink

Comments

Don't forget Cass Sunstein's eminently workable distinction: Courts are activist when they overrule precedents or strike down statutes as unconstitutional. Imperfect, but pretty useful to carry around in your pocket.

Posted by: Tony the Pony | April 5, 2005 10:43 PM

I don't really understand why anyone who believes in judicial review would want to call striking down statutes activist. I'm not even sure I grant that overruling precedents is properly "activist", unless "activism" is simply taken to be a neutral term (as opposed to a claim that a judge is violating some proper notion of judical restraint). Since most of us who advocate for judicial restraint (pace Jeremy Waldron) do believe in judicial review, I think we would have to be committed to the notion that the failure to strike down inalid laws or policies is every bit as activist as the choice to strike down valid ones.

Posted by: Fr. Bill | April 6, 2005 1:48 PM

It's easier to think about it coming from a democratic perspective. If you assume that every law passed represents the will of the people, it's easy to get at least an idea of what "activism" on the bench would be. But yeah, the reason for couching it thus is to get a neutral term.

Posted by: Tony the Pony | April 11, 2005 3:36 PM

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

Name:

Email Address:

URL:

Remember personal info?

Comments:

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

And like that... he is gone (8)
Bateleur wrote: I tip my hat to you - not only for ... [more]

Law Firm Technology (5)
Len Cleavelin wrote: I find it extremely difficult to be... [more]

Post Exam Rant (9)
Tony the Pony wrote: Humbug. Allowing computers already... [more]

Symbols, Shame, and A Number of Reasons that Billy Idol is Wrong (11)
Adam wrote: Well, here's a spin on the theory o... [more]

I've Always Wanted to Say This: What Do You Want? (14)
gcr wrote: a nice cozy victorian in west phill... [more]