The proper role of courts engenders significant debate. Yet, what seems better settled is the principle that courts are the place at which the common law is developed. Its genesis and modifications evolve out of the juridical process and when that process becomes encumbered or deferred to the legislature the role of the judiciary is called into question. This essay makes the case that expressive minimalism too often governs the common law judicial approach to biotechnology. The cases visited in this domain test our capacity to understand whether life is appropriately described as being beyond the definition of property, as well as the disputed assumptions about life being commodifiable, patentable, destroyable, and conscriptable. There are also the circumstances that demand secondary or third party response depending on judicial expression, including what to do when life is stolen, misappropriated or fraudulently acquired. Goodwin argues that rather than motivating legislative action, or imbuing the bench with greater wisdom or information, expressive minimalism in the context of biotechnology will likely send fuzzy signals. Fuzzy signals will not be clear messages to the legislature. To the contrary, fuzzy signals, like those transmitted across cell phones and televisions, discombobulate messages, distort pictures, and ultimately, are difficult to read.
Expressive Minimalism and Fuzzy Signals: The Judiciary and the Role of Law,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss1/3