68 Southern California Law Review 1545 (1995) (with John Ferejohn)
Mary Ann Glendon maintains that the United States has created too many legal rights in the last two generations. She argues, to an increasingly receptive audience, that this multiplication of rights threatens both national values and efficiency. The critique of rights can be seen as containing both normative and positive aspects. The expansion of rights-oriented discourse is said by some to impoverish political debate by posing public issues in rigid and inflexible terms that limit our capacity to find solutions. The creation of new rights is also thought to diminish our commitment to older and perhaps more fundamental rights. Moreover, the shift to a rights-based politics is marked by a shift of institutional forum away from legislatures and into courts. Insofar as courts lack the capacity to make complex and well-informed public policy decisions, this forum shift is likely to lead to worse policies.
Date of Authorship for this Version
Eskridge, William N. Jr. and Ferejohn, John, "Virtual Logrolling: How the Court, Congress, and the States Multiply Rights" (1995). Faculty Scholarship Series. Paper 3798.