Judicial Entrepreneurship: The Role of the Judge in the Marketplace of Ideas

Judicial Entrepreneurship: The Role of the Judge in the Marketplace of Ideas

Judicial Entrepreneurship: The Role of the Judge in the Marketplace of Ideas

Judicial Entrepreneurship: The Role of the Judge in the Marketplace of Ideas

Synopsis

A fresh and provocative perspective on the judicial process and the transmission of ideas into law. Professors McIntosh and Cates demonstrate, through the actions and writings of such diverse jurists as Louis Brandeis, Sandra Day O'Connor, Jerome Frank, and Hans Linde, how judges' pet intellectual projects become the fodder for new ideas in the law.

Excerpt

What do appellate judges do? Well, they do make decisions, and a great deal of social science scholarship focuses upon the decision process -- who votes with whom, how often, and in which legal venues? Final outcomes are relatively easy to count, cumulate, analyze, compare, and correlate with discrete personal characteristics. To be sure, outcomes are a necessary eventuality of the judicial enterprise. On collegial courts outcomes require cooperative activities and probably strategic maneuvering.

Judges usually exhibit fairly consistent voting patterns in specific areas, suggesting that they have policy preferences just like everybody else. Viewed this way, judicial outcomes represent not just a collection of individual preferences, but an amalgamation tinged with compromise and mutual accommodation. a collegial court is not a loose collection of independent law firms charged with addressing a set of common problems and expressing their independent views. They must face the practical reality that they are involved in a group project.

The tendency is to analyze the judging process in terms similar to those used to study legislatures. To be sure there are certain commonalities. and many, if not most, judges came to the bench after considerable experience in politics. So it is reasonable to assess what they do in political terms and to assume that court outcomes are the products of a seamless political process, even if judges face unique constraints. Hence, voting and bloc analyses, and assessments of opinion assignment, are based upon these kinds of assumptions. Judicial policy analysis begins similarly. and we find that some judges seem to be political ideologues: some take consistently very conservative positions, others consistently liberal, others are more moderate. Another body of research tends to exaggerate the differences between courts and legislatures. So, we find that some judges are restraintists, some are activists; and role theory dwells upon the uniqueness in making decisions as a judge as opposed to a legislator.

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