State courts and the "passive virtues": Rethinking the judicial function

Harvard Law Review

Volumn 115, Issue 7, 2001, Pages 1834-

  Hershkoff, Helen ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041330679     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342498     Document Type: Article

References (6)

1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS III (1962); Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40 (1961); see also Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 416 (1997) (defining the passive virtues as "the strategic use by courts (particularly the Supreme Court) of justiciability doctrines and other procedural techniques to avoid deciding issues the Court believes are best deferred to a later date"). Bickel's account of the passive virtues generated considerable controversy. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 1 (1964) (critiquing Bickel's thesis as "vulnerable and dangerous"); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674 (1966) (criticizing Bickel's theory for "equat[ing] completely what is constitutional and what is good").
2. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS III (1962); Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40 (1961); see also Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 416 (1997) (defining the passive virtues as "the strategic use by courts (particularly the Supreme Court) of justiciability doctrines and other procedural techniques to avoid deciding issues the Court believes are best deferred to a later date"). Bickel's account of the passive virtues generated considerable controversy. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 1 (1964) (critiquing Bickel's thesis as "vulnerable and dangerous"); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674 (1966) (criticizing Bickel's theory for "equat[ing] completely what is constitutional and what is good").
3. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS III (1962); Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40 (1961); see also Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 416 (1997) (defining the passive virtues as "the strategic use by courts (particularly the Supreme Court) of justiciability doctrines and other procedural techniques to avoid deciding issues the Court believes are best deferred to a later date"). Bickel's account of the passive virtues generated considerable controversy. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 1 (1964) (critiquing Bickel's thesis as "vulnerable and dangerous"); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674 (1966) (criticizing Bickel's theory for "equat[ing] completely what is constitutional and what is good").
4. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS III (1962); Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40 (1961); see also Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 416 (1997) (defining the passive virtues as "the strategic use by courts (particularly the Supreme Court) of justiciability doctrines and other procedural techniques to avoid deciding issues the Court believes are best deferred to a later date"). Bickel's account of the passive virtues generated considerable controversy. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 1 (1964) (critiquing Bickel's thesis as "vulnerable and dangerous"); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674 (1966) (criticizing Bickel's theory for "equat[ing] completely what is constitutional and what is good").
5. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS III (1962); Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40 (1961); see also Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 416 (1997) (defining the passive virtues as "the strategic use by courts (particularly the Supreme Court) of justiciability doctrines and other procedural techniques to avoid deciding issues the Court believes are best deferred to a later date"). Bickel's account of the passive virtues generated considerable controversy. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 1 (1964) (critiquing Bickel's thesis as "vulnerable and dangerous"); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674 (1966) (criticizing Bickel's theory for "equat[ing] completely what is constitutional and what is good").
6. BICKEL, supra note 1, at 112 (observing that "these jurisdictional techniques and like devices have fallen into something of a state of disrepair").