Wednesday, June 16, 2010
Professors Charles D. Kelso (University of the Pacific McGeorge School of Law) and R. Randall Kelso (South Texas College of Law) have posted "Judicial Decision-Making and Judicial Review: The State of the Debate, Circa 2009" on SSRN. It will be published in the West Virginia Law Review.
The abstract states:
In this article, we consider each of these five recent statements on the topic of judicial decisionmaking, placing the books into a broader context of theories on judicial review. As noted in this review, there are four basic styles of judicial decisionmaking: formalism (where literal text is given great weight), Holmesian (often characterized by deference to government action and concern for underlying purposes of the law), natural law (emphasis on judicial precedent and general principles underlying the law); and instrumentalism (great attention paid to alternative social policy consequences of a decision). With regard to constitutional interpretation, formalist judges focus on sources of meaning existing at the time of ratification – text, context, and history – with particular focus on literal text. This leads to a static, or fixed, view of the Constitution based on the textual meaning at the time of ratification. Holmesian judges add to these sources a judicial deference to legislative, executive, and, to some extent, social practice under the Constitution. Natural law judges add to these sources great respect for precedent and reasoned elaboration of the law. Instrumentalist judges add a focus on prudential principles. For conservative instrumentalists, this typically involves greater weight paid to prudential principles of judicial restraint; for liberal instrumentalists, this typically involves greater weight paid to principles of justice or social policy embedded in the law.
Comparing the five books discussed in this article, it is clear that descriptions and evaluations of what happens in judicial decisionmaking are influenced by the observer’s perspective on what style of deciding is preferred. Placed in this perspective, each of these five books makes a good contribution to legal scholarship, once the predisposition of the author is understood: Judge Posner (conservative instrumentalist); Justice Scalia (formalist); Professor Quirk (Holmesian); Professor Farber (natural law, with a hint of liberal instrumentalism), and Professor Purcell (liberal instrumentalist).