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Hastings Law Journal

Abstract

In recent years the Supreme Court often has followed the modern trend and applied cost-benefit analysis to reach its decisions. Professor Tribe, the second annual Mathew 0. Tobriner Memorial Lecturer, criticized the use of this technocratic mode of analysis by a constitutional court. His critique focused on seven essential dangers of that mode of analysis: (1) The devaluation of process as an end in itself, (2) Ignoring the disparity in how alternative rules affect the rich and poor, (3) Focusing on the tangible effects of challenged governmental practices to the exclusion of intangibles, (4) Allowing case-by-case decisionmaking to obscure the direction in which the law is moving, (5) Overlooking the constitutive dimension of governmental action, (6) Abdicating responsibility for choice, and (7) Indulging in judicial activism in the guise of strict construction.

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