Justice Ruth Bader Ginsburg a Hayekian?
April 24, 2010
Mark D. White
While searching for readings for my legal philosophy class (now focusing on constitutional interpretation in light of the pending Supreme Court nomination and confirmation process), I lit upon this fantastic symposium on Justice Ruth Bader Ginsburg in the Ohio State Law Journal, in particular the article by Tobias Barrington Wolff entitled "Ruth Bader Ginsburg and Sensible Pragmatism in Federal Jurisdictional Policy," in which Wolff writes (emphasis mine):
Justice Ginsburg combines this concern over the inherent limitations of statutory language with a particular strain of interpretive conservatism. Her dissent in Surgeons, and her work in the area of procedure more broadly, exhibits a healthy respect for the wisdom of past practice as it develops over time. For Justice Ginsburg, the starting point in applying open-ended congressional language to a question of procedure or jurisdiction is an appreciation for the stable and sensible solutions that lawyers and judges have crafted in responding to analogous problems in past disputes. In this area of law, at least, her approach might be described as Hayekian in its respect for the value of the organic development of complex practices. (p. 858)
Always nice to see Hayek invoked in unexpected contexts.
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