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How "Activist" Should Judges Be? Objectivity in Judicial Decisions

Tara Smith

Presented at: OCON 2005

Date: Jul 02, 2005

Charges of judicial activism and politicized judging have increased dramatically in recent decades. The stakes of such disputes are momentous. For even the best-designed laws cannot protect individuals' rights if those laws are not properly interpreted when brought before judges. But what is improper judicial activism? How should judges interpret the law?

This lecture will examine several competing answers to these questions, such as theories espousing adherence to original intent, textualism, values and popular sovereignty. We will identify the pivotal philosophical premises beneath each theory and the practical implications of its employment. Drawing on our critique of these views, we will also consider: What should we want in a judge? What is his proper role? What ends should he be most concerned to uphold? If we seek the rule of law (as opposed to the rule of men), what does that ideal amount to in this context, given that a nation's laws must be man-made and man-applied?


Parts: 1

Handout: none