How Atypical, Hard Cases Make Bad Law (See, e.g., The Lack of Judicial Restraint in Twombly, Wal-Mart, and Ricci)

37 Pages Posted: 8 Mar 2013 Last revised: 5 Sep 2023

See all articles by Suja A. Thomas

Suja A. Thomas

University of Illinois College of Law

Date Written: May 5, 2013


Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.

Keywords: Judicial restraint, judicial modesty, judicial humility, Wal-Mart, Ricci, Twombly, stare decisis

Suggested Citation

Thomas, Suja A., How Atypical, Hard Cases Make Bad Law (See, e.g., The Lack of Judicial Restraint in Twombly, Wal-Mart, and Ricci) (May 5, 2013). Wake Forest Law Review, Vol. 48, 2013, Illinois Public Law Research Paper No. 13-43, Available at SSRN: or

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics