Apropos of judicial confirmations and predicting future judicial philosophy (as well as my post the other day on Bruce Ackerman’s characterization of Justice Souter as a “moderate conservative”), I received this email from a professor of property law:
I’m writing in connection with your post and your article about Justice Souter not being a “moderate conservative” you would be interested in his approach to what would be considered a somewhat obscure (hard to believe!) issue: whether blocking someone’s light (and air) could be a nuisance. The very settled approach in the United States is to reject such claims (England has a doctrine of ancient lights which was firmly rejected here). To my knowledge only two cases have held that blocking light could be a nuisance. One is Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982) and the other is Tenn v. 889 Associates, Ltd., 500 A.2d 366 (N.H. 1985), in an opinion penned by none other than then New Hampshire Justice David Souter. This is a *very* liberal opinion, couched in the ever-evolving-common-law guise. It pretty much encapsulates his approach, but I doubt anyone bothered to read this in the course of the nomination process. It very much supports your point.
Sometimes judicial philosophy is revealed in the most unlikely places.
I apologize in advance if I just gave my colleague Michael O’Neill, currently on-leave to serve as chief staffer to the Senate Judiciary Committee, a whole bunch of new homework!
Update:
Sorry, I should have been more clear about the context that prompted this post–it is responsive to not just my previous post that I link, but more importantly, an insightful discussion in the Comments to that post regarding the question of the similarities between Souter and Harlan’s jurisprudence, and whether Souter’s use of precedent could be truly described as Burkean, as Harlan often is. I should have made that context more clear when I posted this.
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