If the Public Would be Outraged by their Rulings, Should Judges Care?

Thursday 17 May 2007

NEWS RELEASE

Cass Sunstein, Karl N Llewellyn Dist. Service Prof. of Jurisprudence, Law School, University of Chicago will be in Oxford on Thursday 24th May to give the Annual Lecture in Law and Society organised by the Foundation for Law, Justice and Society jointly with the Law Faculty at the University of Oxford and the Centre for Socio-Legal Studies.

If the Public Would be Outraged by their Rulings, Should Judges Care?

At first glance, judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause that it is meant to promote or impose serious social harms, judges have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the Court's ruling would be incorrect on the merits; if most people disagree with the Court's decision, perhaps the Court is wrong.

Those who adopt a method of constitutional interpretation on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on non-consequentialist grounds (including some originalists). The epistemic argument for judicial attention to public outrage is greatly weakened if people suffer from a systematic bias or if public outrage is a product of an informational, moral, or legal cascade. There is also an argument for banning consideration of the effects of public outrage on rule-consequentialist grounds: Judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. But in rare (but important) cases, judges legitimately attend to outrage and its effects as a way of ensuring against futile or perverse outcomes.

An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage.

The lecture will take place at Rhodes House, South Parks Road, Oxford OX1 3RG at 5.30pm on Thursday 24th May.  Tickets can be reserved by emailing judy.niner@fljs.org.

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Notes for editors:

Cass Sunstein
http://www.law.uchicago.edu/faculty/sunstein

The Foundation for Law, Justice and Society
The Foundation for Law, Justice and Society is an independent institution committed to studying, reflecting on and promoting an understanding of the role of law in local, regional, national and international affairs and to make the work of researchers and scholars more accessible to practitioners. Learn more about the Foundation at: www.fljs.org

The Law Faculty, University of Oxford
Law at Oxford has been taught for some 850 years. Over the centuries the Law Faculty has been home to many of the key figures of the modern common law, such as Anson, Dicey, Pollock, Cheshire, Cross, Morris and Hart. Renowned internationally for the quality and breadth of its teaching and research the Law Faculty is home to many of the most prominent voices in law today. To find out more about the Law Faculty visit:
www.law.ox.ac.uk

The Centre for Socio-Legal Studies, University of Oxford
Since its foundation at the University of Oxford in 1972, the Centre for Socio-Legal Studies has become a world leader in conducting innovative, interdisciplinary research into the interaction of law and society. The Centre consists of a group of researchers and scholars from complementary backgrounds in the law and social sciences with a view to generating new directions and practical direction on both enduring and cutting edge issues. To find out more visit:
www.csls.ox.ac.uk

For more information, please contact Phil Dines on:

01865 284433 (day)

07809 219 543 (mobile)

01865 209163 (evening)

Phil.dines@fljs.org (email)