Document Type
Article
Publication Date
10-20-2014
Abstract
American proponents of legal formalism, such as Supreme Court Justice
Antonin Scalia, worry (quite reasonably) that unfettered judicial discretion
poses a threat to democratic legitimacy, and they offer formalism – the mechanical
implementation of determinate legal rules – as a solution to this threat. I argue
here, however, that formalist interpretive techniques are neither sufficient nor
necessary to impose meaningful constraint on judges. Both the text and the
“original meaning” of legal rules are endemically under determinate, leaving much
room for judicial discretion in the decision of cases. But meaningful judicial
constraint can and does flow from other sources in American adjudication. Judges
are constrained by the dispute-resolving posture of their task, which requires that
they be impartial as between the litigants and responsive to the litigants’
participatory efforts. And they are constrained by the need to be faithful to the
substantive principles that justify legal rules, even when those rules themselves are
indeterminate. Judicial constraint in the American system thus stems not primarily
from formalist interpretative methods, but rather from largely unwritten procedural
principles of judicial impartiality, responsiveness, and faithfulness.
Recommended Citation
Christopher J. Peters,
Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication,
(2014).
Available at:
https://scholarworks.law.ubalt.edu/all_fac/880