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Remedying Judicial
Inactivism:
Opinions as Informational Regulation
CHAD M. OLDFATHER
Marquette Law School Legal Studies Paper No. 06-33
Florida Law Review, Vol. 58, p. 743, 2006
Abstract:
This article continues the
exploration of what I have termed "judicial inactivism" - the
possibility that judges might sometimes fail to perform the minimum
requirements of their role. That task, of course, requires
consideration of what those minimum requirements might be. To what
extent, for example, are courts subject to a duty to adjudicate not
merely the cases before them in a broad sense, but also to resolve
the precise claims and arguments that the parties put before them on
the terms that the parties have done so?
The article first draws on my prior
work to outline some of the components of these minimum
requirements, which I have termed the "adjudicative duty." It then
explores the extent to which the current structures and processes of
appellate courts facilitate fulfillment of that duty. It concludes
that many of the traditional constraints that encouraged appellate
courts to comply with the adjudicative duty are no longer effective,
due in large part to modifications made in response to the demands
of rising caseloads.
The article next develops a
conception of judicial opinions as a mechanism of "informational
regulation," a term used to describe regulatory processes that
operate through the required disclosure of information rather than
through more traditional command-and-control mechanisms. That
analysis suggests that the format of opinions could be modified so
as to encourage judicial behavior that is more consistent with the
adjudicative duty.
The article finally proposes one such
modification. Specifically, I suggest that opinions include "framing
arguments" - party-generated statements of the issues before the
court. Judges required to justify their decisions in the shadow of
the parties' characterization of the dispute, I argue, would be more
likely not only to justify, but also to reach those decisions in a
manner that is responsive to the parties' arguments, and therefore
more consistent with the adjudicative duty. The use of framing
arguments would also encourage greater transparency in the judicial
decision making process, thereby making it easier for the various
audiences to which judicial opinions are directed to monitor courts'
behavior.
Accepted
Paper Series
Suggested
Citation
Oldfather,
Chad M., "Remedying Judicial Inactivism: Opinions as Informational
Regulation" . Florida Law Review, Vol. 58, p. 743, 2006
Available at SSRN:
http://ssrn.com/abstract=926537
Contact Information for CHAD M.
OLDFATHER (Contact Author)
Email address for Chad M. Oldfather, Marquette University
- Law School
Sensenbrenner Hall, Milwaukee , WI 53201, United States,
414.288.8031 (Phone)
Judicial Activism and the Rehnquist Court
Available at SSRN:
http://ssrn.com/abstract=765445
Lori A.
Ringhand, University of Kentucky - College of Law
Abstract:
This paper is an empirical analysis of the voting behavior of the
individual Justices sitting on
Rehnquist Natural Court. The
paper, which focuses on the 11-year period between 1994 and 2005
when there were no personnel changes on the Court, examines
individual judicial votes to invalidate federal and state laws, and
to overturn existing precedent. I conclude that the Court's judicial
conservatives were no less likely than their more liberal
counterparts to invalidate legislation and overturn precedent, and
to do so in ideological predicable ways. NOTE: Please cite to the
published versions of this paper: "Judicial Activism: An Empirical
Examination of Voting Behavior on the Rehnquist Court"
(Constitutional Commentary, 2007; and "The Rehnquist Court: A By the
Numbers Retrospective" (University of Pennsylvania Journal of
Constitutional Law, 2007).
Suggested Citation
Ringhand, Lori A., "Judicial Activism
and the Rehnquist Court" (September 7, 2005).
(SSRN abstract with links for
download) in the November 2005 issue of
"Defining Judicial Inactivism:
Models of Adjudication and the Duty to Decide"
The Georgetown Law Journal.
Chad M. Oldfather
Marquette Law School Legal Studies Research Paper No. 06-08
Georgetown Law Journal, Vol. 94, p. 121, 2005
Abstract:
Debate over
the proper function of courts tends to focus on delineating the
outer limits of judicial authority. Of primary concern is the
phenomenon often described as "judicial activism." Although there is
no fixed notion of precisely what constitutes judicial activism, the
idea underlying the activist critique is that we ought to be worried
about judges overstepping the bounds of their role, and somehow or
other doing more than is proper.
What might be
characterized as "judicial inactivism," in contrast, has generally
been overlooked. This is somewhat curious. Underlying concern about
judicial inactivism is a recognition of the possibility that judges
might fail to perform the minimal components of the judicial
function. The consequences of such a judicial failure to act -
typically the preservation of the status quo - will generally be no
less significant than those resulting from judicial action. Indeed,
since improper judicial inaction might be harder to detect than
improper judicial action, one might suppose that we should be more
concerned about judicial inactivism than we are about judicial
activism.
This article
attempts to provide an answer to the question of what judicial
inactivism might look like. In so doing, it draws on previous
efforts to articulate models of civil adjudication, and unites that
literature with the largely distinct body of work addressing the
topic of judicial candor. The goal is to articulate at least some of
the components of the "adjudicative duty" - a court's minimal
adjudicative obligations when presented with a justiciable claim
over which it has jurisdiction.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Suggested
Citation
Oldfather,
Chad
M., "Defining Judicial Inactivism: Models of Adjudication and the
Duty to Decide" . Georgetown Law Journal, Vol. 94, p. 121, 2005
http://ssrn.com/abstract=877002
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Contact
Information for CHAD M. OLDFATHER (Contact Author)
Email
address for CHAD M. OLDFATHER,
Marquette University - Law School,
Sensenbrenner Hall,
Milwaukee , WI 53201,
U.S.,
414.288.8031 (Phone)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
DOWNLOAD: SSRN Electronic
Paper Collection
An Introduction to Inactivism
by
Thomas L. Knapp
I meet lots of
activists; as a matter of fact, I'm one myself. This introduction
isn't intended to insult activists or to denigrate the need for
activism. Instead, I'd like to focus on an essential difference
between outwardly directed political or social activity and personal
accomplishment of the same goals that that outwardly directed energy
is spent promoting.
ac·tiv·ism,
n. 1. the doctrine or practice of vigorous action or involvement as
a means of achieving political or other goals, sometimes by
demonstrations, protests, etc.
(Webster's
Encyclopedic Unabridged Distionary of the English Language, New York
1996, p. 20)
in·ac·tiv·ism,
n. the doctrine or practice of personal withdrawal of consent and
participation in institutions whose functions run counter to one's
personal, political or social philosophy.
Inactivism,
rightly understood, is actually a form of activism, but one which
depends to a far smaller degree on persuading and educating others;
its effects are more reliable, because it requires the commitment of
only one person -- yourself. Another term for inactivism might be
"personal secession." The concept of inactivism has been long
understood and promoted by various people under other names; I make
no claim to having discovered the idea, although I hope that this
essay will introduce some to the concept and induce them to adopt it
for use. This introduction to inactivism is, ironically, a piece of
activism.
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