Judgement Calls: Principle and Politics in Constitutional Law

Hardcover | November 24, 2008

byDaniel A. Farber, Suzanne Sherry

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Judgment Calls tackles one of the most important and controversial legal questions in contemporary America: How should judges interpret the Constitution? Our Constitution contains a great deal of language that is vague, broad, or ambiguous, making its meaning uncertain. Many people believethis uncertainty allows judges too much discretion. They suggest that constitutional adjudication is just politics in disguise, and that judges are legislators in robes who read the Constitution in accordance with their own political views. Some think that political decision making by judges isinevitable, and others think it can be restrained by "strict constructionist" theories like textualism or originalism. But at bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middleground. Farber and Sherry disagree, and in this book they describe and defend that middle ground. They show how judging can be--and often is--both principled and flexible. In other words, they attempt to reconcile the democratic rule of law with the recognition that judges have discretion. They explain howjudicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements. In exploring how constitutional adjudication works in practice (and how it can be made better), Farber and Sherry cover a wide range of topics that are relevant to their thesis and also independently important, including judicial opinion-writing, the use of precedent, the judicial selectionprocess, the structure of the American judiciary, and the nature of legal education. They conclude with a careful look at how the Supreme Court has treated three of the most significant and sensitive constitutional issues: terrorism, abortion, and affirmative action. Timely, trenchant, and carefullyargued, Judgment Calls is a welcome addition to the literature on the intersection of constitutional interpretation and American politics.

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Judgment Calls tackles one of the most important and controversial legal questions in contemporary America: How should judges interpret the Constitution? Our Constitution contains a great deal of language that is vague, broad, or ambiguous, making its meaning uncertain. Many people believethis uncertainty allows judges too much discret...

Daniel A. Farber is the Sho Sato Professor of Law and an adjunct faculty member of the Energy and Resources Group at the University of California, Berkeley. He is also the Faculty Director of the California Center for Environmental Law and Policy (CCELP) at Berkeley. Professor Farber also serves on the editorial board of Foundation Pr...

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Format:HardcoverDimensions:240 pages, 9.25 × 6.13 × 0.98 inPublished:November 24, 2008Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195371208

ISBN - 13:9780195371208

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Table of Contents

Preface1. IntroductionPart I: The "Problem" of Judicial Review2. The Inevitability of American Judicial Review3. The Democracy WorryPart II: Discretion and Judgment4. How to Think About Discretion5. Reason and Relevance6. The Anatomy of JudgmentPart III: Precedent as a Safeguard7. Respect for Precedent8. Explaining PrecedentPart IV: Process Safeguards9. Deliberation and Multiple Decision-makers10. Transparency11. IncrementalismPart V: Internalized Safeguards12. Professionalism and the Selection Process13. The Role of the Legal AcademyPart VI: Case Studies14. Terrorism15. Abortion16. Affirmative ActionSome Closing WordsBibliographic Essay