Analyzing avoidance: Judicial strategy in comparative perspective

Erin F. Delaney*

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    20 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 - 2016

    ASJC Scopus subject areas

    • Law

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