• March 7, 2011

“Judicial Activism” has negative connotations and is normally counter-balanced with an idea of “judicial restraint,” which is thought to be a good thing.

But, stripping the notion of “activism” from the ideological battlefield between the left and right wings, a court’s active engagement in its work — the often very hard work of problem-solving and adjudicating — is, beyond dispute, a good thing.

If judges treat their jobs as mechanistic and passive, that puts all of the burden of creative problem-solving on litigants (who often have no experience or expertise at all in litigation) and their counsel (who often often seem to have no experience or expertise at all in litigation, either (or problem-solving, more generally)).

In a recent decision, Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) rolled up his sleeves, waded into the fray, and got creative in order, it is hoped, to resolve a long and costly dispute.  

In Cannon Technologies v. Sensus Metering, Judge Kyle has issued a creative order calling for a non-binding summary jury trial, with very different rules  than a real trial.

An appropriate analogy might be to a threshold arm-wrestling match to avoid the more costly, damaging, and bloody ultimate fighting bout?  The match, incidentally, will open to the public but, as a matter of constitutional law, probably will not make it to pay-per-view.

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