Analyzing avoidance: Judicial strategy in comparative perspective

Erin F. Delaney*

*Corresponding author for this work

Research output: Contribution to journalArticle

19 Scopus citations

Abstract

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of-or the evolution of popular societal consensus around-a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Original languageEnglish (US)
Pages (from-to)1-67
Number of pages67
JournalDuke Law Journal
Volume66
Issue number1
StatePublished - Jan 1 2016

ASJC Scopus subject areas

  • Law

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