Law Students Say the Darnedest Things

Will at Crescat Sententia makes the surprising assertion that ... legislatures can make laws!

To the extent we're worried about what I'll call the O'Connor objection (that's Beth O'Connor, not Sandra Day)-- this objection is that people might threaten to do illegal acts just so that people will pay them to go away-- we can eliminate those contracts by individual legislative decision. It's important to remember that in our system the courts do not stand alone as the makers of law: Unlike courts, legislatures are not obligated to follow their logic to its endpoints, and are free to make judgment calls. In this case, if legislatures decide that letting people contract to not-assault one another is a bad idea, they can criminalize it, and the court needn't try to craft a too-loose solution of its own. [Emphasis mine.]

I realize this was probably intended as irony, but isn't it telling that such a reversal can be tossed off as a commonplace? Anyone who still doubts that the courts have become altogether too intrusive just isn't paying attention.

(Regarding the substance of his point, doesn't this argument cut both ways? If a legislature can specify limits to a judicial ruling that contracts can enjoin forbearance from illegal action, why can't the legislature simply specify that such contracts are valuable in the first place? This would remove the role of interpretation entirely. But the fact that legislatures have generally not done so is indicative of the consensus that such contracts are not popularly desired, whether or not they are desirable in the abstract.)

UPDATE
Will Baude replies:

1: The statement was meant ironically. But remember, time was when courts *did* make law, and nobody thought this was a problem. That was the common law. And it's still the reality in many states, and in all of contract law (which was the focus of my post). There is much to be said for the view that the court should keep its nose out of things except where it is authorized-- it is a view that I share. But it's worth remembering that judicial activism is illegitimate only when it is unauthorized, not *per se*.

2: Surely you recognize the importance of default rules. There is little lobby or energy to make refraining from illegal acts into valid consideration, but there is also little energy to do the opposite (except perhaps in the limited protection racket case). This only shows that the stakes are lowish-- not that the status quo is correct.

I think I am in essential agreement with both points. But common law assumes a body of shared precepts which I think are lacking in our current society. This is why (or at least partly why) the objection to judicial activism is so strong -- the decisions of the courts are no longer reliably consistent with the common understanding of justice. I think it may also be why society has become simultaneously more litigious and more insistent that minor details be spelled out in positive law. Interpretation of loopholes is a dangerous business when there is no agreed upon standard.

Furthermore, in such a climate, it is not unreasonable to urge caution in making any change, even if the stakes are low. The status quo may not be correct, but it is the devil we know.

But having said that, I think Will's case that refraining from illegal acts can form a valid consideration is a reasonable one. My objection is procedural rather than substantive.