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Legal debate

A legal debate is a discussion between lawyers, legal academics, jurists, politicians, and others who might have an interest or expertise in the law, about a particular legal issue.

Legal debates can take many forms, and do not necessarily need to be face-to-face debates. Most legal debates take place on paper—judges within a court, for example, might debate each other most effectively when the court publishes a decision. Legal debates include (but are not limited to) the following:

Debates in Western societies often follow broad themes, including

In the United States, legal debates over the past decade have concerned the following important topics:

In general, the variety of debates—ranging from basic social policy to grander theory about constitutional design and democratic theory—suggests that legal debates overlap with several other social institutions and expectations.

  • Debates between legal academics. Although these debates can happen face-to-face—at conferences, for example—these debates tend to take place in the pages of law reviews. An example might be a law professor printing an article in a prominent law review, with another law professor offering a rejoinder in a subsequent issue. Sometimes, an academic might raise an issue that is debated throughout the legal academy: for example, Alexander Bickel's book, The Least Dangerous Branch, has been the touchstone for an ongoing debate on the countermajoritarian difficulty.
  • Debates between judges. These debates, as well, will often occur face to face during judicial conferences, but they find their most prominent voice in written opinions. Splintered U.S. Supreme Court decisions present a prominent example. Antonin Scalia's dissents with the majority epitomize the nature of judicial legal debate—a debate that often centers around the proper means of interpreting federal statutes or the Constitution.
  • Debate between politicians. An example of this debate is that between the President of the United States and the United States Congress over the ability of the executive power to issue clandestine wiretaps without seeking a warrant. The legal debate at issue is the scope of executive power vis-a-vis the other branches of government.
  • General debate within society. Societies always debate the legal order. The process of electing politicians and lobbying is a form of legal debate: the majority tends to become part of a coalition that agrees on the laws that will be implemented.
  • The balance between state power and civil liberties
  • The proper breadth of civil liberties relative to social norms and moral expectations


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