Hastings Law Journal


In his Article, Professor Gottlieb argues that the United States Supreme Court does not consider the values underlying interests and, thus, the Court refuses to treat interests and rights similarly. By refusing to examine the values behind interests, the Court allows interests to dominate constitutional law to the detriment of rights. Professor Gottlieb's concern with the roles that interests and balancing play within constitutional analysis are manifested in several propositions considered in the Article.

First, Professor Gottlieb argues that many arguments about interpretation are logically irrelevant. If interpretive canons were consistently applied to both rights and interests, differences in outcomes among the interpretive canons would cancel out.

Second, although interests have been entangled in an argument about the legitimacy of balancing, many of those arguments are irrelevant because the exercise of discretion in decision making is inevitable. Balancing is inevitable because conclusions about values (and therefore rights and interests) require intuitive judgments; categorical decisions and rules merely sweep balancing under the carpet. In lauding the simplicity of rules, the Court subverts the balancing of the values used to create the rules. Professor Gottlieb argues that since the criticisms of balancing can be applied to any intuitive process for resolving conflicts of values, and since both rules and balancing depend on intuitive judgments that we do not know how to explain, we should accept the fact that intuitive judgments must be made and try to improve those judgments by appropriate standards. Professor Gottlieb suggests the improvement can take two forms as suitable: (1) improving the base of information (either by clarification, simplification, or expansion), and (2) where possible, improving the means of comparison.

Finally, Professor Gottlieb suggests that interests define values. Interests have a strong republican and communitarian cast that, when applied to rights, expand liberties as much as they shape them. Thus, the Court's treatment of public values only in derogation of personal liberty is not called for by the Constitution. By translating rights and interests into a common language, the barrier between them, and the partiality that exists on the Court, would be removed.

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