October 2005 Vol. 104 No. 1 THE REVIEW

Correspondence: Testing Minimalism: A Reply

Cass R. Sunstein

Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics. They prefer incompletely theorized agreements, by which diverse people, from their different perspectives, can unite behind modest rather than immodest theorizing. They believe that such agreements recognize the difficulty of resolving foundational debates, and that they also allow people, including judges, to show one another a large measure of mutual respect.

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