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Discretion And Judicial Decision: The Elusive Quest For The Fetters That Bind Judges, Kent Greenawalt
Discretion And Judicial Decision: The Elusive Quest For The Fetters That Bind Judges, Kent Greenawalt
Faculty Scholarship
"The Judge as a Legislator" is the subtitle of the third of Benjamin Cardozo's famous lectures on The Nature of the Judicial Process, delivered in 1921. Though emphasizing the restraints under which judges should act, Cardozo nevertheless compares the task of the judge with that of the legislator:
The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open …
Walter Gellhorn, Michael I. Sovern
Walter Gellhorn, Michael I. Sovern
Faculty Scholarship
Walter Gellhorn is irreplaceable. To be sure, in every generation there will be a few scholars who are his peer. In a strong teaching faculty like Columbia's, there will always be some who teach as well as he. The republic is occasionally blessed with public servants who give themselves with the sort of selfless devotion that Walter Gellhorn brings to every task. Each of us can count on a handful of good friends like him for moral support, good advice and uncritical love. But I know of no one who has served an institution so loyally and so effectively with …
Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt
Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt
Faculty Scholarship
Racial preferences for blacks generate ambivalence in those who care about racial equality and also believe that individuals should be judged "on their own merits." This ambivalence is reflected in divergent "equal protection" values, the value of eliminating barriers to equality imposed on minority groups and that of distributing the burdens and benefits of social life without reference to arbitrary distinctions. It is hardly surprising, therefore, that after Marco DeFunis, Jr. challenged the constitutionality of racial preferences for admission to a state law school, the Supreme Court's resolution of the issue was awaited with intense interest and some trepidation. For …