Document Type
Article
Publication Title
Hastings Law Journal
Abstract
Contemporary constitutional law presents most constitutional conflicts as ones between individual rights and state interests. The central role that metaphors of judicial balancing play in modern constitutional decision making emerges from organizing constitutional conflicts in these terms. When rights and state interests, each with their claim to legitimacy, are perceived to be in collision, we are compelled toward "weighing" the "strength" of state interests against the "degree" of intrusion on individual rights. "Balancing" becomes the principle technique of judicial decision. This dominant modern technique, however, raises as many questions as it answers. How do courts "balance" seemingly incommensurable entities, such as rights and state interests? What determines the "weight" courts assign to various state interests? How "great" must an intrusion on individual rights be before a state interest is compelling, or substantial, or important, or legitimate enough to overcome it? These analytical conundrums about balancing are the focus of this Symposium.
First Page
711
Volume
45
Publication Date
1994
Recommended Citation
Richard H. Pildes,
Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law,
45
Hastings Law Journal
711
(1994).
Available at:
https://gretchen.law.nyu.edu/fac-articles/892
