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Following Thayer: The Conflicting Models of Judicial Restraint

33 Pages Posted: 28 Mar 2012 Last revised: 13 Apr 2012

Date Written: March 27, 2012

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.

Keywords: Jurisprudence, Judicial Restraint, Constitutional Law

JEL Classification: K40

Suggested Citation

Shemtob, Zachary Baron, Following Thayer: The Conflicting Models of Judicial Restraint (March 27, 2012). Boston University Public Interest Law Journal, Vol. 21, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=2029687

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