Frankness About Activist Judges

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4 Responses

  1. rusty says:

    Gives new meaning to the word “frankness.”

  2. The problem isn’t “activism”, we don’t want judges to be passive in the face of constitutional violations. (Well, “we” do if we’re officeholders, I suppose, which explains a lot about the sort of people who wind up on the bench…) The problem is “dishonesty”.

    And I’d be careful with that educated 10 year old rule; There’s an awful lot of modern constitutional jurisprudence which would fail it in a heartbeat.

  3. Thomas says:

    That’s not a very good description of the case at all.

    The Supreme Court opinion says that “the Seventh Circuit panel thought that the phrase “fiduciary duty” incorporates a standard taken from the law of
    trusts.” So to the extent we are to find that Supreme Court opinion persuasive, aren’t we to believe this part as well, and thus find your claim that Easterbrook “made up a new definition” of fiduciary to be inaccurate?

    The Supreme Court’s opinion addressed a debate between Judges Easterbrook and Posner on the subject of the case, and was not addressed solely to Judge Easterbrook: “The debate between the Seventh Circuit panel and the dissent from the denial of rehearing regarding today’s mutual fund market is a matter for Congress, not the courts.”

    As for the clarity of the standard enacted in the law, I think we can fairly say that the Supreme Court does not find it as clear as you do. The Court says “The meaning of §36(b)’s reference to “a fiduciary duty with respect to the receipt of compensation for services” is hardly pellucid…” and concludes, with significant understatement, that the Gartenberg standard, which it says best reflects the meaning of that text, “may lack sharp analytical clarity.”

  4. Brett says:

    your general point may be reasonable, but using the easterbrook case to support it is highly misleading. He did not disagree with the statute. He was applying fiduciary duty in the setting of compensation, which as he points out is a difficult thing indeed. Bad law professor!!