This Comment examines the conflicting demands on American courts to safeguard the will of the legislature, ensure the protection of the minority, and resolve particular disputes and redress particular injuries. The manner and scope in which a court theorizes is critical as it binds future courts and litigants to its decisions. Professor Cass Sunstein proposes a jurisprudence of minimalism and supports theoretical modesty in the form of the "incompletely theorized agreement", the notion that individuals can agree on less theorized principles to resolve cases at hand without resorting to high-level theoretical pronouncements. This Comment addresses Sunstein's minimalist regime within the contexts of the Supreme Court's adjudication of constitutional matters. The Comment argues that the less a court is held accountable to precedent (stare decisis), the less viable incompletely theorized agreements become as a means of fostering agreement. The Comment describes the nature of incompletely theorized agreements along with the role of analogical reasoning and discusses the weak effect of stare decisis when a high court interprets a supreme constitution. The stare decisis required to facilitate incompletely theorized agreements results in defeating the benefits of such a regime. The Comment also addresses the assumption that minimal theorization comports with traditional notions of judicial restraint and Ronald Dworkin's criticism of this theory. The Comment contends that neither incompletely theorized agreements nor aggressive legal theorization alone are capable of ensuring minimalism and restraint and that incompletely theorized agreements are not viable in a jurisprudential climate of weak adherence to precedent and few a priori limits on the scope of inquiry afforded a case. Theoretical modesty, the Comment argues, is also problematic as by confronting the need to theorize at the point of application in each case, a court minimizes the justification to theorize in a later case. The Comment concludes that a court should define its holdings with particularity rather than force a successive court to impose its own theory.
Incompletely Theorized Agreements: An Unworkable Theory of Judicial Modesty,
34 Fordham Urb. L.J. 1457
Available at: http://ir.lawnet.fordham.edu/ulj/vol34/iss5/2