Following Thayer: The Conflicting Models of Judicial Restraint
Zachary Baron Shemtob
March 27, 2012
Boston University Public Interest Law Journal, Vol. 21, No. 1, 2011
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: K40Accepted Paper Series
Date posted: March 28, 2012 ; Last revised: April 13, 2012
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