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January 28, 2003
CONTACT: David Fish
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On Mau-Mauing the Judiciary
May Says Most Judges Are Not Dworkins

WASHINGTON, D.C. - Despite a number of highly publicized cases, primarily at the Supreme Court level, in which judges seem to make new rather than apply existing law, Progress & Freedom Foundation Senior Fellow Randolph J. May believes most judges adhere closely to the text of the law. That view is fortified with numerous examples by Ronald A. Cass in his new book, The Rule of Law in America. But, in a review of the work, May notes with approval the author’s warning that exaggerated claims of judicial activism could create a self-fulfilling prophecy.

Cass, who is dean at Boston University School of Law, lays out a theoretical basis for the rule of law, which May finds sound and useful: “Reduced even further to its elemental core, the rule of law implies a system in which the exercise of government power against individuals is constrained by what Cass calls ‘extrinsic rules of principled predictability’,” writes May in the Cato Journal. But he says Cass’s primary contribution is on the question of whether we are seeing a real erosion of the rule of law. Both Cass and May believe generally we are not, at least from the bench.

Far from the ‘chain-novel’ view of law espoused by Professor Ronald Dworkin, in which a judge is unconstrained by text and actively engaged in evolving the law, May believes Cass provides convincing proof that most judges are constrained. “Most of the time, as a result of constraints ranging from reversal aversion and desire for approval from professional colleagues to the sheer volume of cases on the dockets and their prevailing ordinariness, judges act principally as ‘translators of the law’,” writes May. But, like Cass, he fears mau-mauing of the judiciary could result in more Dworkin-like rulings.

“Dean Cass has done well to remind that if we assert too often, without a sound basis, that judges in the U.S. act unconstrained…we may actually create a self-fulfilling prophecy,” May writes. “With expectations for adherence to neutral principles of law lowered, more and more judges may be tempted ‘to try a hand at creating the legal solutions they deem best suited to solve whatever problems they see’.”

May, who is senior fellow and director of communications policy studies, is widely published and writes a regular column for Legal Times. He practiced communications and administrative law for over two decades before joining the Foundation.

The Progress & Freedom Foundation is a market-oriented think tank that promotes innovative policies for the digital age. It is a 501(c)(3) research & educational organization founded in 1993.



The Progress & Freedom Foundation