Posted by: captainfalcon | August 8, 2011

Quote for the Day

From William Eskridge’s Public Values in Statutory Interpretation, a good account of the shift in attitudes among leftwing scholars of American government from the 1950s “end of ideology” era to the present day:

Three things broadly characterized the belief structure of legal process thinkers. First was a sanguine view of government, what I call ‘optimistic pluralism.’ Drawing from the standard political science treatises in the 1950s, legal process thinkers believed that the purpose of government was to resolve clashes among interests and to solve problems that these groups could not solve on their own, and that this politics of pluralism generally produced good policies. Second, adherents of legal process accepted the values of traditional liberalism: Individuals should presumptively be left alone to pursue their own preferences, but the government might interfere when it could do so ‘neutrally.’ Government rules must be justified in some way that does not compare preferences—either by reference to some ‘objective’ collective good accepted by a majority of people in the legislature, or to a ‘rational’ expansion of those collective decisions by interstitial lawmakers, such as judges and bureaucrats. Third, legal process scholars possessed an almost religious faith in procedure. The objectivity and neutrality of law both resulted from and was justified by good procedures.

While conceptions of pluralism, positivism, and proceduralism oversimplify the legal process agenda, they were underlying assumptions of it and help explain why traditional legal process theory has hesitated to embrace the idea that courts should articulate and enforce public values. Its optimistic pluralism leaves the selection of overall values to the legislature; judicial choice of policies smacks of natural law. Positivism questions the pedigree of decisionmaking criteria that cannot be rigorously traced back to either constitutional or statutory provisions. Proceduralism cautions against any judicial lawmaking, confining it to the ‘interstices.’

These objections to the public values idea are not as compelling today as they were 30 years ago. Landmark events such as Brown and its ongoing judicial implementation, the Civil Rights Act of 1964, the War in Vietnam and draft resistance, Stonewall, Roe v. Wade, and the Equal Rights movement have, for most intellectuals, eroded the cogency of the conservative features of the legal process philosophy. We are cynical about the operation of pluralistic legislatures. We believe that law is more than the positive commands of the sovereign. We are impatient with procedural justifications that mask substantive injustice. While we do not think we are naive about the limitations and foibles of judges, courts command our respect more than do legislatures and executive agencies.


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