Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts Was Invented

Hardcover | January 21, 2011

byEvan Tsen Lee

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Many legal scholars believe that judges should not be "activists." But exactly what does it mean for judges to practice "restraint," and how did that set of practices evolve in America? In Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented, Evan Tsen Leetraces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the "vested property rights" courts of the early 20th Century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as "standing" and "abstention" out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside ofthe varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stemclimate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices - John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia. Largely written in narrative form, it will appeal to those interested in howpolitics, society, and the power of ideas have shaped American public law.

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Many legal scholars believe that judges should not be "activists." But exactly what does it mean for judges to practice "restraint," and how did that set of practices evolve in America? In Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented, Evan Tsen Leetraces the cultural, social, and intellectu...

Evan Tsen Lee is Professor of Law at the University of California, Hastings. He received an A.B. in political science from the University of California, Berkeley, and a J.D. from Yale Law School. He served as a judicial clerk to the late William H. Orrick, Jr., United States District Judge in San Francisco. Since joining the faculty ...
Format:HardcoverDimensions:248 pages, 6.42 × 9.41 × 0.91 inPublished:January 21, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195340345

ISBN - 13:9780195340341

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Table of Contents

PrefacePrologue1. John Marshall and the Inseparability of Action and Restraint2. David Brewer, Natural Rights, and the Triumph of Equity3. From Protestant Idealism to Scientific Pragmatism4. Brandeis and Limits on Federal Judicial Power5. Frankfurter and the Intellectualization of Judicial Restraint6. Brennan, Civil Rights, and the "Personal Stake" Gambit7. The Triumph of Self-Interest8. Scalia, the Environment, and the Modern Standing DoctrinePostscript: The People, the Court, and the AcademicsIndex