Incompletely Theorized Agreement

This commentary examines conflicting requests to U.S. courts to protect the will of the legislature, to protect the minority, to resolve certain disputes and to remedy specific violations. The manner and extent of a court`s theorization is crucial because it links future courts and parties to its decisions. Professor Cass Sunstein proposes a case law of minimalism and supports theoretical modesty in the form of “partially theorized agreement”, the idea that individuals can agree on less theorized principles to solve cases without resorting to high-level theoretical maxima. This commentary deals with Sunstein`s minimalist regime in the context of the Supreme Court`s decision on constitutional issues. The commentary argues that the less a court is held responsible for the precedent (stare decisis), the less the agreements not completely theorized are achievable as a means of promoting agreements. The commentary describes the nature of partially theorized agreements with the role of analog argumentation and discusses the weak effect of Stare Decisis when a High Court of Justice has a supreme constitution. The agreements of a stun division, necessary for the implementation of partially theorized agreements, cause harm to the benefits of such a scheme. The commentary also deals with the assumption that minimal theorization with traditional conceptions of judicial restraint and Ronald Dworkin`s critique of this encoded theory. The opinion argues that neither partially theorized agreements nor the theory of aggressive law alone can guarantee minimalism and restraint, and that partially theorized agreements are not feasible in a climate of weak compliance with precedents and only the prior limits on the scope of the investigation that made a case possible.

Theoretical modesty, according to the commentary, is also problematic, as a court downplays the justification of theorizing in a later case by confronting the need to theorize at the time of application. The commentary concludes that a court should define its stocks with specificity rather than force a successive court to impose its own theory. (Added highlight.) Professor Sunstein sees these under-theorized agreements as the result of democratic reflection. It refers, for example, to federal criminal directives, which are not a model of theoretical coherence, but are at least incorporated into the legislation. It also points out that these agreements may work for parties with limited time or limited fluctuation margin with which a particular decision can be made. The basic idea is simple. We cannot agree on the deep issues, so go flat. Find the level where those who disagree in depth can still find common ground. John Rawls calls the idea of the community “the overlapping consensus.” Cass Sunstein calls a similar idea, “partially theorized agreement.” But Sunstein and Rawls express a similar intuition.

If you can`t agree on the deep end of the pool of ideas, go to the flat end! Cass Sunstein has a related but different idea, which he calls “partially theorized chords.” Here is a summary of his article in the Harvard Law Review: Or is it? In an earlier article (as in the mid-1990s), Chicago law professor Cass Sunstein described the phenomenon of “partially theorized agreements.” (The article is partially theorized chords, 108 Harv.