Marty Lederman marty.lederman at comcast.net
Mon Sep 4 11:02:29 PDT 2006

On the many different variations of the unhelpful term "activist," check out this nice little piece by Bill Marshall:


----- Original Message ----- 
  From: Sean Wilson 
  To: Frank Cross ; RJLipkin at aol.com ; lring2 at email.uky.edu 
  Cc: CONLAWPROF at lists.ucla.edu 
  Sent: Monday, September 04, 2006 1:11 PM
  Subject: Re: Originalism, Moral Skepticism, a the Ubiquity of the Normative

  If the constitution says "protect speech," and a judge fails to do so, how is it that his or her passivity is not an excess of the judicial will equal to when he or she strikes down, say, a punitive damage award? In each case it is the desire of the judge to construct winners and losers that seems to prevail. The term activism, therefore, cannot mean how often you strike. It must have something to do with epistemology: how often you REACH. Whether judges reach more than others is an interesting question. One could indeed adopt a view that says reaching is bad (thought it would be contested). But one could never adopt the view that striking is bad, unless one was saying that too much striking is evidence of reaching. Activism only makes sense if it refers to the propensity of the judge to go "out of bounds." Not calling a "strike" when the pitch is in the strike zone is every bit a threat to the institution of umpiring as calling strikes when the pitches are high.


  Frank Cross <crossf at mail.utexas.edu> wrote:

    Well, people erroneously assume activism is bad.  It is fair to say that striking down laws is activist.  Doing so may be constitutionally appropriate, even required, but it is still activist.  Doing nothing is not activist.  We need to differentiate between activism and passivism, and only then can we try to differentiate between appropriate and inappropriate activism

  Dr. Sean Wilson, Esq. 
  Penn State University
  Website: http://ludwig.squarespace.com/home/
  SSRN papers: http://ssrn.com/author=596860
  Conference papers: http://ludwig.squarespace.com/research-agenda/
  Curriculum Vitae: http://ludwig.squarespace.com/storage/wilsonvita%5B.pdf

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