Document Type

Article

Publication Date

2008

Center/Program

Center for Constitutional Governance

Abstract

Thanks for having me, I'm glad to be here. I'm going to take for granted the principle that candor and transparency in judicial reasoning is a very good thing. The process of judicial decision making is a process of giving reasoned explanations, of holding up reasons and arguments for refutation. Whether adjudication turns mainly on such reason giving or instead on judicial policy preferences is of course a matter of some dispute, but I think it is relatively noncontentious to say that reason giving is both an important constituent of, and an important constraint on, the process of adjudication – particularly constitutional adjudication. And it follows that candor about these reasons – about what's really driving a judicial decision – is important. Such candor is particularly important in regard to precedent, because another important constraint in the area of constitutional adjudication is the need to take seriously decisions that courts, both yours and others, have previously issued.

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