Saturday, January 24, 2004

Adopting law

So I'm reading this unremarkable case, Cuker v Mikalauskas, 547 Pa 600, where the Pennsylvania Supreme Court states that "[w]e specifically adopt §§ 7.02-7.10 and § 7.13 of the ALI Principles." Now, the ALI is a fine institution, and I'm sure their provisions on the business judgment rule are top notch, and courts say this sort of thing all the time -- nevertheless, I find this sort of brazen legislating worrisome.

Question: Is it better to be brazen or stealthy when a court is legislating? On the brazen side, at least legislatures and citizens can see what the court is doing and take corrective action if necessary. On the stealthy side, at least the appearance of propriety aseparationion of powers remains (not sure that there is a structural separation of powers in the PA constitution, but I'm taking the principle here as a fundamental tenant of democracy). Maybe there's not much to recommend stealthy legislating over brazen legislating, so perhaps I should prefer this. Thoughts?

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