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Testing Minimalism: A Reply, Cass R. Sunstein
Testing Minimalism: A Reply, Cass R. Sunstein
Michigan Law Review
Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics. …
A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel
A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel
Michigan Law Review
According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. In its enthusiasm for abstraction, constitutional theory has, at times, generated …