Search Site
Menu

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    Colleen was great to deal with and communication was easy.

    Read more

    Graham Eyres

  • google
    5.0/5.0

    Colleen represented both my daughter and myself in a car accident case. It was a tricky and very involved case with many detail oriented issues to deal with. She handled everything with confidence and grace and supported us through what were some ver...

    Read more

    Rhonda Brouder

  • google
    5.0/5.0

    I’m a college student in the Boston area who suffered a pedestrian personal injury in December of 2022. Thankfully I was put into contact with Feinberg & Alban PC and I worked closely with Robert and Perry Feinberg who treated me with respect and f...

    Read more

    Anne O'Leary

  • google
    5.0/5.0

    Alexis Cahill was great, professional, and was open for me to contact on any questions I may have had during the process. Feinberg & Alban PC's services were nice as well, and I'd recommend them due to the transparency, what they were able to negotia...

    Read more

    Branden B.

  • google
    5.0/5.0

    My mom had a great experience with Feinberg as her attorney, after she fell near her house, and he took her under his wing. Mr. Feinberg was helpful, very organized and kind. He helped my mom a lot, very happy with results

    Read more

    Jane sungurov

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form

  • This field is for validation purposes and should be left unchanged.