Traditionalism and Rationalism in the Courts

Same-sex marriage might pose an unbridgeable issue between rationalist and traditionalist thinking. This article responds to Professor Wax by fitting the legislature and courts into Wax\u27s rationalist/traditionalist paradigm. Like the traditionalist, the court must be cautious, conservative, and avoid egregious errors. The court must decide which party legal tradition already supports. In contrast, the legislature can be viewed as a conduit for rationalist ideas. Like the rationalist, the legislature can break with tradition and choose competing legal reforms that will improve society. Thus, the author concludes that the legislature, not the courts, should decide same-sex marriage issues because when courts base their decisions on equality rather than tradition, it risks resulting in errors that can be difficult to remedy

Are Modern Bloggers Following in the Footsteps of Publius? (And Other Musings on Blogging by Legal Scholars . . .)

Is legal blogging an antidote to the hyper-scholasticism that sometimes characterizes the legal academy today? Or is it a self-indulgence for legal scholars? It\u27s hard to know. On the one hand, there is a proud American tradition behind the publication of concise but erudite essays aimed at a broad audience concerning the important legal issues of the day, starting with the Federalist Papers. It\u27s hard to believe that neglecting that tradition in favor of a cloistered academic existence in which legal scholars write only for each other could be a good thing. On the other hand, even the best legal blogs contain more chaff than wheat. And legal bloggers who offer mostly ill-considered opinions on every topic imaginable may bring disrepute to the legal academy. On the whole, I am inclined to be cautiously optimistic about the potential value of legal blogging. But then I enjoy blogging, so perhaps my judgment on these matters ought not be deferred to too readily

Way Beyond Candor

Scott Altman\u27s excellent article, Beyond Candor, causes me to pose this query: Does his theory contain not only the seeds of its own rejection, but perhaps also (if I am not careful) the seeds of the rejection of its rejection? Altman tells us of the orthodox view that judges should be encouraged to be both honest with the public and honest with themselves about how they arrive at their decisions. Through this combination of public candor and critical introspection, judges will produce better judicial opinions and ultimately a better legal system, or so the argument runs

Way Beyond Candor

Scott Altman\u27s excellent article, Beyond Candor, causes me to pose this query: Does his theory contain not only the seeds of its own rejection, but perhaps also (if I am not careful) the seeds of the rejection of its rejection? Altman tells us of the orthodox view that judges should be encouraged to be both honest with the public and honest with themselves about how they arrive at their decisions. Through this combination of public candor and critical introspection, judges will produce better judicial opinions and ultimately a better legal system, or so the argument runs