Following Thayer: The Conflicting Models of Judicial Restraint

Abstract:     
The concept of judicial restraint continues to generate both fierce fidelity and criticism. This paper argues judicial restraint does not embody a single theory of jurisprudence, as is often assumed, but consists of discrete yet interrelated models governing proper judicial conduct. These models pivot around judges’ “reasonable doubt test,” or to what external standard judges should appeal when determining if a piece of legislation is clearly unconstitutional. These models have varied significantly, from Oliver Wendell Holmes’s “reasonable man” test to J. Harvie Wilkinson’s textual-based restraintism. Each model contains discrete strengths and weaknesses, the recognition of which leads to a more consistent, coherent, and potentially satisfying overall theory of judicial restraint.

Number of Pages in PDF File: 33

Keywords: Jurisprudence, Judicial Restraint, Constitutional Law

JEL Classification: K40

Accepted Paper Series