08 February 2006

Oldfather on Judicial Inactivism (SSRN & Georgetown Law Journal)

Chad Oldfather (Marquette University) has posted "Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide" on SSRN. A very interesting take on an underexplored dimension of important debates. Here's the abstract:

Debate over the proper function of courts tends to focus on delineating the outer limits of judicial authority. Of primary concern is the phenomenon often described as judicial activism. Although there is no fixed notion of precisely what constitutes judicial activism, the idea underlying the activist critique is that we ought to be worried about judges overstepping the bounds of their role, and somehow or other doing more than is proper. What might be characterized as judicial inactivism, in contrast, has generally been overlooked. This is somewhat curious. Underlying concern about judicial inactivism is a recognition of the possibility that judges might fail to perform the minimal components of the judicial function. The consequences of such a judicial failure to act - typically the preservation of the status quo - will generally be no less significant than those resulting from judicial action. Indeed, since improper judicial inaction might be harder to detect than improper judicial action, one might suppose that we should be more concerned about judicial inactivism than we are about judicial activism. This article attempts to provide an answer to the question of what judicial inactivism might look like. In so doing, it draws on previous efforts to articulate models of civil adjudication, and unites that literature with the largely distinct body of work addressing the topic of judicial candor. The goal is to articulate at least some of the components of the adjudicative duty - a court's minimal adjudicative obligations when presented with a justiciable claim over which it has jurisdiction.

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