: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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David Dow: Judicial Activism Makes America Great


A new book from David Dow: America’s Prophets: How Judicial Activism Makes America Great. I’ve been sending it to my FedSoc friends just to watch them gag and recoil in horror. Knowing David it will be nothing if not interesting, regardless of political persuasion or interpretive predilections.

America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. Dow confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America’s prophets. Dow argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.

Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But Dow argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

Even Judges Get Graded?

It never ends does it? You start off with stars and stickers on your grade school quizzes, graduate to variations on the ‘satisfactories’, check, check minus, check plus and such, then on to alphabet soup of high school and finally the 4 point scale of higher education. Once upon a time a person could graduate, pass the bar and enter a blissful standard-evaluation-free existence. But lo, Avvo surveyed the lawyer landscape and said what these people need are ratings. Escape to the judiciary? Not even there, the Houston Bar Association just released it’s 2009 Judicial Evaluation. As Mary Flood noted, among the elected judiciary no news is good news and all publicity is bad publicity. Something to look forward to.

Volokh on Judicial Interpretation, An Unexamined Consistency May Be Individually Suboptimal

Sasha Volokh ends Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else with this remarkable line:

I do not suggest that a foolish consistency is the hobgoblin of little minds, but, as an economist, I suggest (less eloquently) that an unexamined consistency may be individually suboptimal.

We were fortunate enough to have Prof. Volokh at the University of Houston Law Center this past year. The rest of the paper is well worth discussion but exams loom. It’s published in the Legal Workshop, a new site that’s off to an auspicious start, featuring op-ed versions of the articles published by the member law journals.

Audio: A Judge in Full – Personality and Jurisprudence, Judge Alex Kozinski talks with David Lat

A few weeks ago David Lat, of Above the Law fame, sat down with the Hon. Alex Kozinski, Chief Judge, 9th Circuit for a conversation at a Federalist Society event in Los Angeles. The audio is available below and on the Los Angeles Fed Soc website.

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Bryan Garner’s Interviews with Judges on the Art of (legal) Writing

I came across a treasure trove of interviews done by legal writing guru Bryan Garner with top judges across the country On The Art of Writing

Library of Videos

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