"Activism"

[Douglas Laycock]

  Ernie Young has a piece on the same theme in a symposium in
Colorado a few years back.

  Quoting Marty Lederman <marty.lederman at comcast.net>:

> On the many different variations of the unhelpful term "activist," 
> check out this nice little piece by Bill Marshall:
>
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=330266[1]
>
> ----- 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.
>
>   Regards.
>
>   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/[2]
>   SSRN papers: http://ssrn.com/author=596860[3]
>   Conference papers:
http://ludwig.squarespace.com/research-agenda/[4]
>   Curriculum Vitae:
http://ludwig.squarespace.com/storage/wilsonvita%5B.pdf[5]
>
>
>
>
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Douglas Laycock
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] 
/horde/services/go.php?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fpapers.cfm%3Fabstract_id%3D330266
[2] /horde/services/go.php?url=http%3A%2F%2Fludwig.squarespace.com%2Fhome%2F
[3] /horde/services/go.php?url=http%3A%2F%2Fssrn.com%2Fauthor%3D596860
[4] 
/horde/services/go.php?url=http%3A%2F%2Fludwig.squarespace.com%2Fresearch-agenda%2F
[5] 
/horde/services/go.php?url=http%3A%2F%2Fludwig.squarespace.com%2Fstorage%2Fwilsonvita%255B.pdf
[6] 
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Fconlawprof

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