"The notion of the court as a mechanism for going beyond statutes and past decisions to define justice opened up a wide field of study in the latter half of the 20th century. Among the many professors to shape the judicial system during that time were Ronald Dworkin, a professor at New York University and Oxford, who argued that law must be debated on the basis of moral concepts rather than rules; Richard Posner, a senior lecturer at the University of Chicago and a federal judge, who has been called the single most cited legal authority largely because of his development of cost-benefit analysis; and, conversely, Cass Sunstein, also of Chicago, then Harvard, then the Obama administration, who concluded that the failure of people to act rationally justifies judicial and governmental intervention.
"The great figure who opposed this approach was Antonin Scalia, who left the Chicago faculty to be a federal appeals court judge then a Supreme Court justice, and whose death almost exactly a year ago created the current opening.
"As Mr Presser writes, Scalia believed the law and constitution should be followed by interpreting both as they were understood at the time they were enacted rather than stretched by unelected judges, since original intent was the best means of implementing the will of the people. Change should come through popular votes and the laws enacted by elected legislators. This approach, more than any particular issue, is a fundamental challenge to an expansive court, presidency and even, perhaps, to the aristocratic position that de Tocqueville discerned in the law."
Sunday, February 5, 2017
Whose rules, whose laws
Review of Law Professors: Three Centuries of Shaping American Law, by Stephen B. Presser, at The Economist.