A truly excellent post today by Larry Solum on the <a
3430578154″>Legal Theory Blog. Here is how it ends:
What happens when we complete the conceptual reorientation
and see judging as a mere extension of ordinary politics? Nothing good.
The bottom of a downward spiral of politicization is a thoroughly
politicized judiciary. We know what that looks like. It exists in odd
corners of the United States, where lawyers know that winning even in a
run of the mill tort case is almost entirely a function of how much you
have contributed to the local political machine. A thouroughly
politicized judiciary is the norm in much of the third world, and the
result is that the transparency required for well-functioning markets
cannot be achieved–at enormous costs in human welfare. In a thoroughly
politicized judiciary, every case is a patronage opportunity or a chance
to score political points.
Tom Daschle watched The Bachelor last night. But did he sleep
peacefully, his dreams untroubled by the damage that both parties have
done to the rule of law? I hope not.
You really need to read
this one from the beginning.