Document Type

Article

Publication Title

Seton Hall Law Review

Abstract

Judicial promulgation and enforcement of enhanced error deflection rules in the context of speech regulation, dating from Justice Oliver Wendell Holmes Jr.’s celebrated dissent in Abrams v. United States, is the subject of this essay. Unlike many celebrated students of the power of judges to set aside the actions of democratically legitimate institutions, I do not believe that judicial invalidation of (1) statutes enacted by duly elected legislatures, (2) administrative actions taken by duly serving executives, and/or (3) verdicts issued by randomly selected juries are necessarily rooted in a judge’s allegedly superior ability to identify and define substantive rights codified in a constitutional or statutory text. Rather, I believe that the vast bulk of judicial power to check democratic institutions rests on the articulation and enforcement of judge-made error deflection rules designed to manage the inevitable risk of error that pervades the fog of law. The practical impact of such error deflection rules in a world of uncertainty is to limit or prevent action by democratic institutions in the absence of a judicially defined requisite degree of confidence about the justification for, the need for, or the consequences of governmental action in derogation of textually articulated constitutional values. I believe that it is in the regulatory dead space created by impossibly demanding error reflection rules that the free exercise of autonomy-based rights flourishes.

First Page

241

Volume

51

Publication Date

2020

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