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Remedying Judicial Inactivism: Opinions as Informational Regulation

Judicial Activism & the Rehnquist Court

Defining Judicial Inactivism:
Models of Adjudication and the Duty to Decide

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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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"We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution."

--Cohen v. Virginia, 6 Wheat. 264, 404 (1821). "--

 

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