The Neo-Behavioral Approach to the Judicial Process: A Critique
In: American political science review, Band 57, Heft 3
ISSN: 0003-0554
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In: American political science review, Band 57, Heft 3
ISSN: 0003-0554
In: Indian journal of public administration, Band 40, Heft 3, S. 345-350
ISSN: 2457-0222
In: The annals of the American Academy of Political and Social Science, Band 441, S. 219-220
ISSN: 0002-7162
In: Indiana International & Comparative Law Review, Band 13
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Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, it reminds one of the fundamentalist church sign which proclaimed, "God said it. We believe it. That's all there is to it." The need for judicial balancing, I suggest, results from the imperfection of mundane law. In a better world, no doubt, clear and precise legal rules would anticipate all possible contingencies. No wonder, then, that idealists are impatient with the balancing process. Mr. Frantz" solution has a familiar ring. He suggests that law precedes, and apparently even transcends, politics.' Here is our old friend "the brooding omnipresence"--"the higher law"--that Holmes and Brandeis among others fought so hard to kill. Surely in a democracy law is a creature of the political processes, constitutional and legislative. Judges,of course, cannot avoid legislating in some degree, but to repeat Holmes' much quoted phrase they must do so only interstitially--lest they rather than the people govern.
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In: American casebook series
In: Journal of political & military sociology, Band 10, Heft 2, S. 311-325
ISSN: 0047-2697
In: The Rhodes-Livingstone papers 23
In: Cardozo Law Review, Band 10
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In: The international & comparative law quarterly: ICLQ, Band 2, Heft 1, S. 47-59
ISSN: 1471-6895
In: Tapuya: Latin American science, technology and society, Band 5, Heft 1
ISSN: 2572-9861
In: American political science review, Band 76, Heft 2, S. 413
ISSN: 1537-5943
Blog: Legal Theory Blog
Charles L. Barzun (University of Virginia School of Law) & John C. P. Goldberg (Harvard Law School) have posted Introduction: The Nature of the Judicial Process at 100 (Yale Journal of Law and the Humanities) on SSRN. Here is the...