Thursday 17 September 2009 12.30

Venue: The James Martin 21st Century School

Organised by The Oxford Centre for Neuroethics

Speaker: Professor Tara Smith (University of Texas, Austin)

Judicial Minimalism is the view that judges decide cases properly to the extent that they minimize their own imprint on the law by meticulously assessing “one case at a time,” ruling on “narrow” and “shallow” grounds, eschewing broader theories, and altering entrenched legal practices only incrementally. Minimalism’s increasing popularity across the political spectrum, being embraced by advocates of both right-wing and left-wing ideologies, is touted as a sign of its appropriate value-neutrality. This paper argues that, in fact, that sought-after neutrality is untenable. While others have objected to some of Minimalism’s specific tenets, critics have missed its more fundamental failing: it is an incoherent concept. On analysis, Minimalism’s several planks and rationales are mutually contradictory and, correspondingly, offer conflicting guidance to judges. Thus the reason that Minimalism can appeal to people of such disparate substantive views is that in practice, it is merely a placeholder invoked to sanction a grab-bag of desiderata rather than a method of decision-making that offers genuine guidance.

For more information on this event, please contact: Nick Iles