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Activism v. Precedent

Senate hearings on Supreme Court nominee Elena Kagan focused on the issue of whether a judge should be an activist or respect precedent. Those two are generally seen as mutually exclusive, but depending upon what comes before the court, the very same people who want precedent respected may feel otherwise. The converse may also be true: those who want activist judges want some precedents respected, especially if it would uphold a decision that is favorable to their side. That reminds me of what I was taught in political science, termed by the professor, “the ox-gore theory.” His point was that it all came down to whose ox was being gored. The theory was that you were governed by your vested interest and tailored your argument accordingly.

Without coming down strongly on the side of activism over precedent, I have to say I support the three decisions referenced in a recent blog. There I discussed the abrogation of spousal immunity and cited language from the Supreme Judicial Court endorsing the view that social contexts of generations past may be inadequate. That sounds like a basis to create new rights. Of course, the state court is invested with the authority to create new rights in common law, which includes tort law.

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