Steven Douglas Smith (University of San Diego School of Law) has posted Impoverished Jurisprudence, Beleaguered Judiciary on SSRN. Here is the abstract:
The Founders took thought and then set up, in Article III, an institutional structure for the judiciary that seemed to them sound. A central goal of that structure was to assure judicial independence, through features such as life tenure and salary protections. In Federalist 78, Alexander Hamilton gave a classic defense of that structure. And indeed, the Article III structure—and its commitment to judicial independence—have often been defended as vital to a republic committed to rule of law. So then, why does a structure that for decades and even centuries seemed sound and even essential now seem—to many at least—unsatisfactory?
There are surely many reasons for this development. This essay, however, prepared for and presented as a plenary address at a conference on “Fixing the Courts,” focuses on a less conspicuous, more jurisprudential development. In contrast to the founding period and the nineteenth century, today’s jurists and scholars understand “law” in basically positivist and usually also instrumentalist terms. The positivist-instrumentalist alliance has dominated legal thinking since about the early twentieth century. This essay argues, however, that this positivist and instrumentalist framework has operated to undermine respect for law, and for the judiciary, and thus to provoke demands for reform.
At least half of this claim is already pretty familiar. In recent decades, some legal thinkers—Justice Scalia is probably the most prominent—have criticized the subversive tendencies of the instrumentalist dimension of modern legal understanding (at least as applied to adjudication). But they have typically responded by doubling down on the positivist dimension. And they have thereby failed to address—and may even have aggravated—the underlying malady. Or so this essay argues.
Highly Recommended!
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